People ex rel. Wheeler v. McMann

• Decision Date: 22 October 1965
• Citation: 263 N.Y.S.2d 571,24 A.D.2d 786
• Parties: The PEOPLE of the State of New York ex rel. Robert R. WHEELER, Appellant, v. Daniel McMANN, Warden of Clinton Prison, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 571

263 N.Y.S.2d 571

24 A.D.2d 786

The PEOPLE of the State of New York ex rel. Robert R. WHEELER, Appellant, v. Daniel McMANN, Warden of Clinton Prison, Respondent.

Supreme Court, Appellate Division, Third Department.

Oct. 22, 1965.

Philip A. Berke, Granville, for appellant.

Louis J. Lefkowitz, Atty. Gen., Anthony J. Lokot, Albany, for respondent.

Before HERLIHY, J. P., and REYNOLDS, TAYLOR, AULISI and HAMM, JJ.

REYNOLDS, Justice.

Appeal from an order of the Supreme Court, Clinton County, denying relator's petition for a writ of habeas corpus without a hearing.

In October, 1960, relator, represented by counsel, plead guilty to an indictment charging him with assault, first degree, and sodomy, first degree. In the instant proceeding he asserts that the indictment was defective and thus his plea a nullity. The use of short form indictments is clearly constitutional (People v. Bogdanoff, 254 N.Y. 16, 171 N.E. 890, 69 A.L.R. 1378), and since we find nothing jurisdictionally defective in the present indictment (cf., People v. Riforgiato, 19 A.D.2d 132, 241 N.Y.S.2d 239 and People v. Berkowitz, 14 Misc.2d 384, 178 N.Y.S.2d 119, affd. 7 A.D.2d 1031, 184 N.Y.S.2d 710), any question of the sufficiency of the indictment should have been raised prior to judgment (People ex rel. Wysokowski v. Conboy, 19 A.D.2d 663, 241 N.Y.S.2d 245, mot. for lv. to app. den. 13 N.Y.2d 597, 243 N.Y.S.2d 1026, 193 N.E.2d 644).

Judgment affirmed, without costs.

HERLIHY, J. P., and TAYLOR, AULISI and HAMM, JJ., concur.