People ex rel. Davis v. Smith

54 A.D.2d 1131, 389 N.Y.S.2d 83, 1976 N.Y. App. Div. LEXIS 15120

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 12, 1976
• Status: Published

Opinion

Judgment unanimously affirmed. Memorandum: Relator was convicted on his plea of guilty to two counts of criminally selling a dangerous drug, third degree. The judgment was affirmed on appeal (People v Davis, 43 AD2d 665). He brings this habeas corpus proceeding alleging that the sentencing court erroneously held an informal hearing before sentencing and received evidence concerning his conduct during the period of time between his plea of guilty and the time of sentencing and that it considered this evidence of his drug-related activity during that time in imposing sentence. We affirm Special Term’s denial of the writ. Relator has waived his claim by failure to raise it on direct appeal (People ex rel. Tanner v Vincent, 44 AD2d 170, affd 36 NY2d 773). Further, we find no impropriety in the procedure followed by the sentencing court (CPL 400.10). (Appeal from judgment of Wyoming County Court—habeas corpus.) Present —Cardamone, J. P., Simons, Mahoney, Dillon and Witmer, JJ.