People ex rel. Stephens v. Lacy

Appeal from a judgment of the Supreme Court (Plumadore, J.), entered June 22, 1992 in Franklin 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 March 1990 upon his plea of guilty of the crimes of burglary in the second degree and attempted burglary in the second degree. In this proceeding, [916] petitioner contends that he was improperly sentenced as a predicate felon because a 1981 conviction for attempted burglary in the second degree, relied upon as a predicate felony in his sentencing upon his 1990 conviction, was invalid. Notably, petitioner does not challenge the validity of another felony conviction used as a predicate felony in sentencing him upon his 1990 conviction. We agree with Supreme Court that habeas corpus is not a proper remedy in this case. Habeas corpus relief does not lie in that petitioner would at most be entitled to resentencing and not immediate release (see, People ex rel. Hatzman v Kuhlmann, 173 AD2d 895; People ex rel. World v Jones, 88 AD2d 1096, lv denied 57 NY2d 608). Mikoll, J. P., Yesawich Jr., Mercure, Crew III and Harvey, JJ., concur. Ordered that the judgment is affirmed, without costs.