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People ex rel. Shaffer v. Kuhlmann

173 A.D.2d 1034 Court N.Y. App. Div. Decision date 1991-05-16 English

Delivered by Crew III, J.

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p. 1034
The People of the State of New York ex rel. William Shaffer, Appellant, v Robert Kuhlmann, as Superintendent of Sullivan Correctional Facility, Respondent.

Appeal from a judgment of the Supreme Court (Bradley, J.), entered July 30, 1990 in Ulster County, which dismissed a writ of habeas corpus in a proceeding pursuant to CPLR article 70.

p. 1035
Petitioner, an inmate at Sullivan Correctional Facility in Sullivan County, challenges his imprisonment based upon alleged defects in the indictment which led to his conviction. He claims that the indictment must be dismissed because it alleged that he forcibly stole property from Canandaigua National Bank and Trust Company without naming the actual persons robbed, which he claims is required by the Penal Law. Contrary to petitioner’s position, it is clear that the bank was a "person” and victim within the meaning of the statute (see, Penal Law § 10.00 [7]; People v Katz, 135 Misc 2d 857 , lv denied 70 NY2d 713 , appeal dismissed 484 US 960 ).

Additionally, the facts alleged in the petition could have been asserted in a CPL article 440 motion or on direct appeal and habeas corpus is thus not an appropriate remedy (see, People ex rel. Rosado v Miles, 138 AD2d 808 ).

Finally, as to petitioner’s contention that he was not afforded an evidentiary hearing, none is required where there are no triable issues of fact and a summary determination can be made upon the pleadings. Petitioner’s presence, therefore, was not required before Supreme Court (see, People ex rel. Robertson v New York State Div. of Parole, 67 NY2d 197 , 203).

Judgment affirmed, without costs. Casey, J. P., Mikoll, Yesawich, Jr., Mercure and Crew III, JJ., concur.

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