People ex rel. Allah v. Leonardo

Appeal *731from a judgment of the Supreme Court (Berke, J.), entered January 22, 1990 in Washington County, which denied petitioner’s application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

Although petitioner argues that his continued imprisonment is illegal because the jury before which he was tried was unlawfully constituted, such an argument could have been raised either by way of direct appeal or by a motion pursuant to CPL article 440 (see, People ex rel. Rosado v Miles, 138 AD2d 808). The facts which petitioner now asserts were either known…