People ex rel. Collins v. New York State Department of Corrections & Community Supervision

132 A.D.3d 1234, 17 N.Y.S.3d 347

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 2, 2015
• Status: Published

Opinion

Appeal from a judgment (denominated order) of the Supreme Court, Wyoming County (Michael M. Mohun, A.J.), dated May 12, 2014 in a habeas corpus proceeding. The judgment denied the petition.

It is hereby ordered that the judgment so appealed from is unanimously affirmed without costs.

Memorandum: Petitioner commenced this proceeding seeking a writ of habeas corpus, contending that he was improperly sentenced as a persistent violent felony offender. We conclude that Supreme Court properly denied the petition. “Habeas corpus relief is unavailable where [,] [as here,] a claim could have been raised on direct appeal or in a CPL article 440 motion” (People ex rel. Tislon v Rock, 84 AD3d 1606, 1607 [2011], lv denied 17 NY3d 712 [2011]; see Matter of Caroselli v Goord, 269 AD2d 706, 706 [2000], lv denied 95 NY2d 754 [2000]). Indeed, we note that petitioner’s contention was in fact raised and rejected on a prior CPL article 440 motion.

Present — Scudder, P.J., Smith, Centra, Peradotto and Carni, JJ.