People ex rel. Cotton v. Senkowski

Appeal from a judgment of the Supreme Court (Lewis, J.), entered February 11, 1992 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 was convicted in 1986 of robbery in the first degree and criminal possession of a weapon in the second degree and sentenced to concurrent terms of imprisonment of 5 to 15 years. Petitioner commenced this habeas corpus proceeding essentially contending that the sentence was excessive because it was disproportionate to the severity of the crimes. Initially, we note that habeas corpus is not available to challenge a sentence which is not in excess of that authorized by statute (see, People ex rel. Aloi v LeFevre, 100 AD2d 662, 663). Moreover, as Supreme Court noted, habeas corpus relief is not a proper remedy where the allegations in the petition could have been raised either on direct appeal or by way of a CPL article 440 motion (see, People ex rel. Woodard v Berry, 143 AD2d 457, 458, lv denied 73 NY2d 705; People ex rel. Rosado v Miles, 138 AD2d 808), and we see no reason to depart from traditional orderly procedure in this case (see, People ex rel. Grady v LeFevre, 152 AD2d 850, lv denied 75 NY2d 702). Finally, habeas corpus is inappropriate because, even if petitioner’s claim has merit, he would not be entitled to immediate release from custody (see, People ex rel. Stewart v People, 143 AD2d 1068, 1069; People ex rel. Knowles v Scully, 101 AD2d 895). Mikoll, J. P., Yesawich Jr., Levine, Mercure and Harvey, JJ., concur. Ordered that the judgment is affirmed, without costs.