The People of the State of New York ex rel. Michael Rada, Appellant, v. Glenn S. Goord, as Commissioner of the Department of Correctional Services, et al., Respondents

The People of the State of New York ex rel. Michael Rada, Appellant, v Glenn S. Goord, as Commissioner of the Department of Correctional Services, et al., Respondents. [711 NYS2d 921] [MAJORITY] —Appeal from a judgment of the Supreme Court (Hemmett, Jr., J.), entered September 16, 1999 in Washington County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 70, without a hearing. Petitioner, having been found guilty of two counts of murder in the second degree, attempted robbery in the first degree and attempted murder in the second degree, commenced this habeas corpus proceeding with respect to the charge of attempted murder in the second degree contending that the indictment on this charge was jurisdictionally defective because it charged a legally impossible and nonexistent crime. Petitioner’s application was dismissed by Supreme Court and we affirm. Initially, it is noted that petitioner failed to comply with CPLR 7002 (c) (5) and (6) by not stating whether any appeal has been taken from the order detaining him and the result of such an appeal (see, People ex rel. Taylor v Jones, 171 AD2d 906). In any event, habeas corpus does not lie in this case since petitioner could have raised this issue on direct appeal from his conviction or in a CPL 440.10 motion (see, People ex rel. Gonzalez v Bennett, 263 AD2d 565, lv denied 94 NY2d 753). Furthermore, petitioner’s application relates to only one count of his indictment and he was convicted and sentenced on three additional counts. Thus, even if he were to prevail, he would not be entitled to immediate release (see, People ex rel. Murray v Goord, 268 AD2d 827, lv denied 94 NY2d 763; People ex rel. Lester v Scully, 191 AD2d 664). Cardona, P. J., Peters, Spain, Graffeo and Mugglin, JJ., concur. Ordered that the judgment is affirmed, without-costs.