The People of the State of New York ex rel. Eric Marsh, Appellant, v. David Miller, as Superintendent of Eastern Correctional Facility, Respondent

The People of the State of New York ex rel. Eric Marsh, Appellant, v David Miller, as Superintendent of Eastern Correctional Facility, Respondent. [713 NYS2d 501] [MAJORITY] —Appeal from a judgment of the Supreme Court (Kavanagh, J.), entered December 27, 1999 in Ulster County, which dismissed petitioner’s application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing. Petitioner commenced this CPLR article 70 proceeding for a writ of habeas corpus alleging that he is unlawfully detained because the indictment was jurisdictionally defective and County Court lacked geographic jurisdiction, properly referred to as venue. Supreme Court dismissed petitioner’s application and we affirm. The record reveals that petitioner could have raised and/or did raise these issues either on direct appeal from the judgment of conviction or by way of a motion pursuant to CPL article 440 in the court of original jurisdiction (see, People ex rel. Caroselli v Goord, 268 AD2d 827, lv denied 94 NY2d 765; People ex rel. Moore v Scully, 189 AD2d 845). Moreover, even if he was successful in his arguments, petitioner would be entitled to a new trial but not to immediate release from detention (see, People ex rel. Douglas v Vincent, 50 NY2d 901, 903). Accordingly, habeas corpus relief is unavailable to petitioner. Cardona, P. J., Crew III, Spain, Graffeo and Rose, JJ., concur. Ordered that the judgment is affirmed, without costs.