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People ex rel Donato v. Kirkpatrick

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


May 7, 2010

THE PEOPLE OF THE STATE OF NEW YORK EX REL. DAVID DONATO, PETITIONER-APPELLANT,
v.
ROBERT A. KIRKPATRICK, SUPERINTENDENT, WENDE CORRECTIONAL FACILITY, RESPONDENT-RESPONDENT.

Appeal from a judgment (denominated order) of the Supreme Court, Erie County (John L. Michalski, A.J.), entered January 12, 2009 in a habeas corpus proceeding. The judgment dismissed the petition.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

PRESENT: SCUDDER, P.J., MARTOCHE, LINDLEY, GREEN, AND GORSKI, JJ.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.

Memorandum

Supreme Court properly dismissed the petition for a writ of habeas corpus. The contention of petitioner that he was improperly sentenced as a persistent violent felony offender could have been raised on direct appeal from the judgment of conviction or by way of a motion pursuant to CPL article 440 and thus habeas corpus relief does not lie (see People ex rel. Sims v Senkowski, 226 AD2d 800, lv denied 88 NY2d 807; see generally People ex rel. Johnson v Graham, 67 AD3d 1452, lv denied 14 NY3d 704).

20100507

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