Opinion
2014-02-7
The PEOPLE of the State of New York ex rel. Mitchell MONTGOMERY, Petitioner–Appellant, v. Dale ARTUS, Superintendent, Gowanda Correctional Facility, Respondent–Respondent.
Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia, A.J.), entered November 29, 2011 in a habeas corpus proceeding. The judgment denied the petition.
David J. Pajak, Alden, for Petitioner–Appellant.
MEMORANDUM:
Petitioner commenced this proceeding seeking a writ of habeas corpus on the ground that he was improperly sentenced as a persistent violent felony offender on his 1998 conviction of burglary in the second degree ( Penal Law § 140.25[2] ). We conclude that Supreme Court properly denied the petition. “Habeas corpus relief is unavailable because petitioner's contention[s] in support of the petition ‘could have been ... raised on direct appeal or by a motion pursuant to CPL article 440’ ” (People ex rel. Lewis v. Graham, 96 A.D.3d 1423, 1423, 945 N.Y.S.2d 903, lv. denied19 N.Y.3d 813, 2012 WL 4936632; see People ex rel. Martinez v. Graham, 98 A.D.3d 1312, 1312, 951 N.Y.S.2d 423, lv. denied20 N.Y.3d 853, 2012 WL 5950389; People ex rel. Lanfair v. Corcoran, 60 A.D.3d 1351, 1351, 876 N.Y.S.2d 257, lv. denied12 N.Y.3d 714, 2009 WL 1773138).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs. SCUDDER, P.J., FAHEY, PERADOTTO, LINDLEY, and SCONIERS, JJ., concur.