
    The People of the State of New York ex rel. Robert Raimondi, Appellant, against J. Vernel Jackson, as Warden of Clinton Prison, Respondent. The People of the State of New York, Respondent.
   Appeal from an order of the Supreme Court entered in the office of the Clerk of Clinton County on November 15, 1948, dismissing a writ of habeas corpus. Relator was convicted of murder in the second degree in 1939 in Kings County Court, and was sentenced to a term of twenty years to life. The conviction was the result of a trial for murder in the first degree upon an indictment returned by a Kings County Grand Jury convened for the month of August, 1938, accusing relator of shooting and killing one Castagna on July 5, 1938. It is the relator’s contention that this indictment was null and void because the matter had previously been submitted to another Kings County Grand Jury convened for the month of July, 1938, and had been resubmitted to the August Grand Jury without an order pursuant to section 270 of the Code of Criminal Procedure. It appears that one witness was called before the July Grand Jury at a time when no formal charge had been lodged against relator, to testify concerning the murder of Castagna. This witness declined to identify the relator as the" murderer, and it is clear that the District Attorney thereupon abandoned the presentation. Before the August Grand Jury the matter was completely presented and the indictment resulted. The relator may not properly attack the validity of the indictment collaterally by habeas corpus, for the first time after his trial and conviction. The Kings County Court had jurisdiction of the defendant and of the crime charged in the indictment. Not having attacked the indictment in that court upon the trial or upon the appeal from his conviction its validity is not the proper subject of review by habeas corpus. However, the court below at Special Term entertained the matter on the merits and properly dismissed the writ. Sections 269- and 270 of the Code of Criminal Procedure contemplate a full consideration and dismissal by one grand jury and subsequent resubmission. Here there was no dismissal. It does not appear that there was any consideration, action, vote or return by the July Grand Jury. Order unanimously affirmed, without costs. Present — Foster, P. J., Heffernan, Deyo, Bergan and Coon, JJ. [See post, p. 954.]  