People ex rel. Sims v. Senkowski

Appeal from a judgment of the Supreme Court (Lewis, J.), entered June 15, 1995 in Clinton County, which denied petitioner’s application for a writ of habeas corpus, in proceeding pursuant to CPLR article 70, without a hearing. Upon being convicted of the crime of criminal possession of a weapon in the third degree, petitioner was sentenced as a persistent felony offender to a term of 10 years to life in prison. He commenced this habeas corpus proceeding challenging his sentence as illegal on the ground that he should not have been sentenced as a persistent felony offender. Inasmuch as petitioner’s argument could have been raised on direct appeal or via a CPL article 440 motion, we agree with Supreme Court that habeas corpus is not an appropriate remedy (see, People ex rel. McGourty v Senkowski, 213 AD2d 954, lv denied 85 NY2d 812; People ex rel. Cotton v Senkowski, 187 AD2d 850, lv denied 81 NY2d 703). Accordingly, we affirm Supreme Court’s judgment. Mikoll, J. P., Crew III, Casey, Peters and Spain, JJ., concur. Ordered that the judgment is affirmed, without costs.