Calendar Date: May 12, 2010
Before: Peters, J.P., Spain, Lahtinen, Stein and Egan Jr., JJ.
Appeal from a judgment of the Supreme Court (Zwack, J.), entered September 4, 2009 in Ulster County, which dismissed petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.
After pleading guilty to various crimes including attempted murder, rape, burglary, robbery and assault, petitioner was sentenced in 2002 to an aggregate prison term of 20 years, but during sentencing, County Court (Braslow, J.) failed to pronounce the postrelease supervision component of his sentence. Petitioner was thereafter resentenced, in 2006, to the same terms of imprisonment, but the court further ordered five years of postrelease supervision on each count, to be served concurrently.
Petitioner then initiated this habeas corpus proceeding to challenge his resentencing. Supreme Court dismissed the petition without a hearing, resulting in this appeal.
We affirm. Inasmuch as petitioner's challenge to his resentencing could have been raised on direct appeal or in a CPL article 440 motion, habeas corpus relief is unavailable (see People ex rel. Funches v Walsh, 48 AD3d 849, 849 , appeal denied 10 NY3d 707 ; People ex rel. Flax v Donelli, 43 AD3d 1259, 1260 , appeal dismissed 9 NY3d 1029 ). Moreover, even if petitioner's contentions were to have merit, his application was properly dismissed because he would not be entitled to immediate release from prison (see People ex rel. Spaulding v Woods, 63 AD3d 1456, 1457 ; People ex rel. Funches v Walsh, 48 AD3d at 849).
Peters, J.P., Spain, Lahtinen, Stein and Egan Jr., JJ., concur.
ORDERED that the judgment is affirmed, without costs.
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