People ex rel. Montgomery v. Artus

114 A.D.3d 1171, 979 N.Y.S.2d 905

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 7, 2014
• Status: Published

Opinion

Appeal from a judgment of the Supreme Court, Erie County (Russell P Buscaglia, A.J.), entered November 29, 2011 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 on the ground that he was improperly sentenced as a persistent violent felony offender on his 1998 conviction of burglary in the second degree (Penal Law § 140.25 [2]). We conclude that Supreme Court properly denied the petition. “Habeas corpus relief is unavailable because petitioner’s contention[s] in support of the petition ‘could have been . . . raised on direct appeal or by a motion pursuant to CPL article 440’ ” (People ex rel. Lewis v Graham, 96 AD3d 1423, 1423 [2012], lv denied 19 NY3d 813 [2012]; see People ex rel. Martinez v Graham, 98 AD3d 1312, 1312 [2012], lv denied 20 NY3d 853 [2012]; People ex rel. Lanfair v Corcoran, 60 AD3d 1351, 1351 [2009], lv denied 12 NY3d 714 [2009]). Present — Scudder, PJ., Fahey, Peradotto, Lindley and Sconiers, JJ.