THE PEOPLE OF THE STATE OF NEW YORK EX REL DAVID DONATO PETITIONER APPELLANT v. ROBERT KIRKPATRICK SUPERINTENDENT WENDE CORRECTIONAL FACILITY RESPONDENT RESPONDENT (2010)

Supreme Court, Appellate Division, Fourth Department, New York.

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

KAH 09-00756

Decided: May 07, 2010

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

ALAN BIRNHOLZ, EAST AMHERST, FOR PETITIONER-APPELLANT.

MEMORANDUM AND ORDER

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 A.D.2d 800, lv denied 88 N.Y.2d 807; see generally People ex rel. Johnson v Graham, 67 AD3d 1452, lv denied 14 NY3d 704).

Patricia L. Morgan

Clerk of the Court

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