September 27, 2013
THE PEOPLE OF THE STATE OF NEW YORK EX REL. JAMES SMITH, PETITIONER-APPELLANT,
HAROLD D. GRAHAM, SUPERINTENDENT, AUBURN CORRECTIONAL FACILITY, RESPONDENT-RESPONDENT.
Appeal from a judgment (denominated order) of the Supreme Court, Cayuga County (Thomas G. Leone, A.J.), entered December 21, 2011 in a proceeding pursuant to CPLR article 70. The judgment denied the petition.
THE STRODS LAW FIRM, AUBURN (LISA A. BLAIR OF COUNSEL), FOR PETITIONER-APPELLANT.
ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (FRANK BRADY OF COUNSEL), FOR RESPONDENT-RESPONDENT.
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, VALENTINO, AND WHALEN, JJ.
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. In support thereof, he contended, inter alia, that he was improperly sentenced as a persistent violent felony offender, the evidence is legally insufficient to support the conviction of sodomy in the first degree (Penal Law former § 130.50 ), and he was denied his right to effective assistance of counsel. We conclude that Supreme Court properly denied the petition. Those contentions could have been raised on direct appeal or by a motion pursuant to CPL article 440, and thus habeas corpus relief is unavailable (see People ex rel. Donato v Kirkpatrick, 73 A.D.3d 1450, 1451, lv denied 15 N.Y.3d 707; People ex rel. Mills v Poole, 55 A.D.3d 1289, 1290, lv denied 11 N.Y.3d 712).