Appellate Division of the Supreme Court of New York, 2004

People ex rel. Smith v. Burge

Appellate Division of the Supreme Court of New York · Decided October 1, 2004

11 A.D.3d 907; 784 N.Y.S.2d 746; 2004 N.Y. App. Div. LEXIS 11230

Cases that cite this one

13 later published cases cite this decision.

People ex rel. Lyon v. Thoms (Appellate Division of the Supreme Court of New York 2020)
MILLS, RICHARD v. LEMPKE, JOHN (Appellate Division of the Supreme Court of New York 2013)
HARRINGTON, DAVID P. v. CULLY, MALCOLM R. (Appellate Division of the Supreme Court of New York 2013)
People ex rel. Harrington v. Cully (Appellate Division of the Supreme Court of New York 2013)
People ex rel. Harrington v. Cully (Appellate Division of the Supreme Court of New York 2013)
People ex rel. Mills v. Lempke (Appellate Division of the Supreme Court of New York 2013)
People ex rel. Mills v. Lempke (Appellate Division of the Supreme Court of New York 2013)
People ex rel. Franza v. Lape (Appellate Division of the Supreme Court of New York 2009)
People ex rel. Hinton v. Graham (Appellate Division of the Supreme Court of New York 2009)
People ex rel. Klosin v. Bebary (Appellate Division of the Supreme Court of New York 2009)
People ex rel. Mills v. Poole (Appellate Division of the Supreme Court of New York 2008)
People ex rel. Forsythe v. Poole (Appellate Division of the Supreme Court of New York 2008)
People ex rel. Tunstall v. Miller (Appellate Division of the Supreme Court of New York 2005)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

Appeal from a judgment (denominated order) of the Supreme Court, Onondaga County (John J. Brunetti, A.J.), dated November 26, 2002 in a proceeding pursuant to CPLR article 70. The judgment dismissed the petition.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Petitioner is serving a sentence of 22Va years to life imposed upon his 1993 conviction of various drug charges. He commenced this proceeding for a writ of habeas corpus, contending that the grand jury proceeding was defective based upon the People’s presentation of perjured testimony and the prosecutor’s failure to issue proper instructions to the grand jury. Habeas corpus relief is unavailable, however, because those *908contentions could have been raised on direct appeal or by a motion pursuant to CPL 440.10 (see People ex rel. McCallister v McGinnis, 249 AD2d 637, 638 [1998]; People ex rel. Sneed v Lacy, 217 AD2d 731 [1995], lv denied 86 NY2d 708 [1995]). The further contention of petitioner that he was denied effective assistance of trial and appellate counsel, based upon counsels’ failure to challenge the allegedly defective grand jury proceeding, would not entitle him to habeas corpus relief (see People ex rel. McCoy v Filion, 295 AD2d 956, 957 [2002], lv denied 98 NY2d 612 [2002]). Supreme Court thus properly dismissed the petition sua sponte (see Matter of Almonte v New York State Div. of Parole, 2 AD3d 1239, 1240 [2003], lv dismissed 2 NY3d 758 [2004]). Present—Green, J.P., Kehoe, Martoche and Hayes, JJ.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.