People ex rel. Stephens v. Lacy

191 A.D.2d 915, 595 N.Y.S.2d 138, 1993 N.Y. App. Div. LEXIS 2474

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 18, 1993
• Status: Published

Opinion

Appeal from a judgment of the Supreme Court (Plumadore, J.), entered June 22, 1992 in Franklin County, which denied petitioner’s application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

Petitioner was convicted in March 1990 upon his plea of guilty of the crimes of burglary in the second degree and attempted burglary in the second degree. In this proceeding, petitioner contends that he was improperly sentenced as a predicate felon because a 1981 conviction for attempted burglary in the second degree, relied upon as a predicate felony in his sentencing upon his 1990 conviction, was invalid. Notably, petitioner does not challenge the validity of another felony conviction used as a predicate felony in sentencing him upon his 1990 conviction. We agree with Supreme Court that habeas corpus is not a proper remedy in this case. Habeas corpus relief does not lie in that petitioner would at most be entitled to resentencing and not immediate release (see, People ex rel. Hatzman v Kuhlmann, 173 AD2d 895; People ex rel. World v Jones, 88 AD2d 1096, lv denied 57 NY2d 608).

Mikoll, J. P., Yesawich Jr., Mercure, Crew III and Harvey, JJ., concur. Ordered that the judgment is affirmed, without costs.