People ex rel. Robinson v. Superintendent of Clinton Correctional Facility

Appeal from a judgment of the Supreme Court (Feldstein, J), entered October 15, 2003 in Clinton County, which denied petitioner’s application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing. Petitioner is currently serving a sentence of 15 years to life in prison upon his 1997 conviction of the crimes of grand larceny in the fourth degree, criminal possession of stolen property in the fourth degree and forgery in the second degree. He filed the instant application for a writ of habeas corpus claiming, among other things, that he was illegally sentenced as a persistent felony offender. Supreme Court declined to issue the writ or an order to show cause, and denied the petition without a hearing. This appeal ensued. It is well settled that habeas corpus relief is unavailable where the issues raised in the petition were or could have been raised either on direct appeal or in a CPL article 440 motion (see People ex rel. Burr v Smith, 6 AD3d 841, 841 [2004]; People ex rel. Encarnacion v McGinnis, 2 AD3d 933, 933 [2003], lv denied 1 NY3d 510 [2004]; People ex rel. Barnett v Senkowski, 294 AD2d 686, 687 [2002]). Petitioner appealed the judgment of conviction challenging his sentencing as a persistent felony offender, an argument which the Fourth Department rejected (People v Robinson, 275 AD2d 965, 966 [2000], lv denied 96 NY2d 738 [2001]). Given that the issues raised in the petition were or could have been raised on such appeal or in a CPL article 440 motion, the application was properly denied. 795 Mercure, J.P., Spain, Carpinello, Lahtinen and Kane, JJ., concur. Ordered that the judgment is affirmed, without costs.