Opinion
No. KAH 09-00756.
May 7, 2010.
Appeal from a judgment (denominated order) of the Supreme Court, Erie County (John L. Michalski, A.J.), entered January 12, 2009 in a habeas corpus proceeding. The judgment dismissed the petition.
ALAN BIRNHOLZ, EAST AMHERST, FOR PETITIONER-APPELLANT.
Present: Scudder, P.J., Martoche, Lindley, Green and Gorski, JJ.
It is hereby ordered that the judgment so appealed from is unanimously affirmed without costs.
Memorandum: Supreme Court properly dismissed the petition for a writ of habeas corpus. The contention of petitioner that he was improperly sentenced as a persistent violent felony offender could have been raised on direct appeal from the judgment of conviction or by way of a motion pursuant to CPL article 440 and thus habeas corpus relief does not lie ( see People ex rel. Sims v Senkowski, 226 AD2d 800, lv denied 88 NY2d 807; see generally People ex rel. Johnson v Graham, 67 AD3d 1452, lv denied 14 NY3d 704).