People ex rel. Sims v. Senkowski — 226 A.D.2d 800

Majority

p. 800

The People of the State of New York ex rel. Andrew Sims, Appellant, v Daniel Senkowski, as Superintendent of Clinton Correctional Facility, Respondent.

[640 NYS2d 820]

Appeal from a judgment of the Supreme Court (Lewis, J.), entered June 15, 1995 in Clinton County, which denied petitioner’s application for a writ of habeas corpus, in proceeding pursuant to CPLR article 70, without a hearing.

Upon being convicted of the crime of criminal possession of a weapon in the third degree, petitioner was sentenced as a persistent felony offender to a term of 10 years to life in prison. He commenced this habeas corpus proceeding challenging his sentence as illegal on the ground that he should not have been sentenced as a persistent felony offender. Inasmuch as petitioner’s argument could have been raised on direct appeal or via a CPL article 440 motion, we agree with Supreme Court that habeas corpus is not an appropriate remedy (see, People ex rel. McGourty v Senkowski, 213 AD2d 954 , lv denied 85 NY2d 812 ; People ex rel. Cotton v Senkowski, 187 AD2d 850 , lv denied 81 NY2d 703 ). Accordingly, we affirm Supreme Court’s judgment.

Mikoll, J. P., Crew III, Casey, Peters and Spain, JJ., concur. Ordered that the judgment is affirmed, without costs.