People ex rel. De Cicco v. LeFevre

108 A.D.2d 995, 485 N.Y.S.2d 387, 1985 N.Y. App. Div. LEXIS 43322

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 14, 1985
• Status: Published

Opinion

Kane, J. P.

Appeal from a judgment of the Supreme Court at Special Term (Ford, J.), entered June 7, 1983 in Clinton County, which dismissed a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, after a hearing.

In this habeas corpus proceeding, petitioner challenges the legality of the sentence imposed upon him on July 6, 1981. Special Term dismissed the instant petition on the ground that the proper means for challenging the sentence are provided in the CPL. This appeal ensued.

This court has consistently held that challenges, such as this, to the legality of a sentence should be reviewed by appeal or pursuant to CPL article 440 rather than by habeas corpus (see, People ex rel. Hall v LeFevre, 92 AD2d 956, 957, affd 60 NY2d 579; People ex rel. World v Jones, 88 AD2d 1096, lv denied 57 NY2d 608; People ex rel. Gaines v Jones, 79 AD2d 1065). Upon review of this record, we find no reasons of practicality and necessity requiring a departure from the traditional orderly procedure, and, consequently, Special Term’s dismissal of the petition should not be disturbed (see, People ex rel. World v Jones, supra). We note that petitioner may still challenge the legality of the sentence imposed pursuant to CPL article 440.

Judgment affirmed, without costs. Kane, J. P., Main, Mikoll, Yesawich, Jr., and Harvey, JJ., concur.