People ex rel. Kelly v. Smith

57 A.D.2d 702, 395 N.Y.S.2d 537, 1977 N.Y. App. Div. LEXIS 11743

Opinion

Judgment unanimously affirmed. Memorandum: Relator, who is presently serving a 25 year to life sentence, instituted a habeas corpus proceeding claiming that he was improperly sentenced because the sentencing court was misinformed with respect to a Federal conviction contained in his probation report and which was subsequently reversed on appeal. Habeas corpus is not the appropriate proceeding to remedy any claimed error of a sentencing court particularly when relator, as here, is legally and properly held on an unrelated sentence (People ex rel. Ganci v Henderson, 51 AD2d 888). It is not clear from the record before us whether relator has pursued an appeal from his conviction; if not, the propriety of his sentence properly may be raised at that time. Assuming that his appeal has been heard, however, County Court correctly denied relator’s application without prejudice to his moving for resentencing under CPL 440.20. (Appeal from judgment of Wyoming County Court— habeas corpus.) Present—Moule, J. P., Cardamone, Simons, Dillon and Witmer, JJ.