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The People of the State of New York ex rel. Terry B. Minter v. Thomas C. Eisenschmidt, as Superintendent of Five Points Correctional Facility
—Appeal from a judgment (denominated order) of Supreme Court, Seneca County (Bender, J.), entered December 26, 2000, which dismissed the petition seeking a writ of habeas corpus.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum: Supreme Court properly dismissed the petition seeking a writ of habeas corpus. The issue raised in the petition could be raised on direct appeal or by a CPL article
[940] 440 motion, and thus the remedy of habeas corpus is not available (see Matter of Roberts v County Court of Wyoming County, 39 AD2d 246, 252-253, affd 34 NY2d 246; People ex rel. Mancuso v Herbert, 256 AD2d 1158, 1159, lv denied 93 NY2d 809; People ex rel. Abdullah v Walker, 199 AD2d 1074, lv denied 83 NY2d 752; People ex rel. Hannon v Ryan, 34 AD2d 393, 396, lv denied 27 NY2d 487; cf. People ex rel. Keitt v McMann, 18 NY2d 257, 262). Present—Pine, J.P., Hayes, Wisner, Scudder and Kehoe, JJ.