People ex rel. Best v. Vaughn

239 A.D.2d 204, 658 N.Y.S.2d 6, 1997 N.Y. App. Div. LEXIS 5168

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 13, 1997
• Status: Published

Opinion

Judgment, Supreme Court, Bronx County (Steven Barrett, J.), entered on or about March 9, 1995, which denied the petition for a writ of habeas corpus, unanimously affirmed, without costs.

The petition was properly denied where petitioner sought to challenge as vindictive an underlying resentence, which was based on new facts, that had been affirmed in 1987 (People v Best, 127 AD2d 671, lv denied 70 NY2d 642). Such challenge may not be redressed through habeas corpus but must instead be addressed either on direct appeal or via a motion pursuant to CPL article 440 (People ex rel. Sims v Senkowski, 226 AD2d 800, lv denied 88 NY2d 807).

We have considered appellant’s remaining contentions and find them to be without merit. Concur—Ellerin, J. P., Wallach, Rubin and Mazzarelli, JJ.