Opinion
December 24, 1990
Appeal from the Supreme Court, Kings County (Coffinas, J.).
Ordered that the judgment is modified by adding thereto a provision dismissing the petition; as so modified, the judgment is affirmed, without costs or disbursements.
The correct procedure for the petitioner to challenge the validity of the sentence imposed on June 7, 1984, was to seek appellate review in this court or to move before the trial court for resentencing pursuant to CPL 440.20. There is no basis for the petitioner to seek such relief in a collateral proceeding in the nature of mandamus (see, Matter of State of New York v. King, 36 N.Y.2d 59, 63). Accordingly, the Supreme Court acted properly by summarily denying the application. However, a decretal paragraph must be added to the judgment dismissing the petition (see, CPLR 7806).
We also note that the petitioner's claim that he was not advised of his right to appeal is an insufficient basis to warrant resentencing absent a showing that he had a genuine appealable issue which he might have raised had he been so advised (see, People v. Melton, 35 N.Y.2d 327; People v. Lynn, 28 N.Y.2d 196). A review of the record herein, including the May 17, 1984, plea minutes attached to the People's brief, indicate that the petitioner was sentenced in accordance with a negotiated plea which reduced his sentence exposure. There would have been no basis for him to raise the alleged excessiveness of such sentence on appeal (see, People v. Kazepis, 101 A.D.2d 816; People v. Melton, supra). Bracken, J.P., Harwood, O'Brien and Ritter, JJ., concur.