THE PEOPLE OF THE STATE OF NEW YORK EX REL MITCHELL MONTGOMERY PETITIONER APPELLANT v. DALE ARTUS SUPERINTENDENT GOWANDA CORRECTIONAL FACILITY RESPONDENT RESPONDENT (2014)

MEMORANDUM AND ORDER

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 on the ground that he was improperly sentenced as a persistent violent felony offender on his 1998 conviction of burglary in the second degree (Penal Law § 140.25[2] ).   We conclude that Supreme Court properly denied the petition.  “Habeas corpus relief is unavailable because petitioner's contention[s] in support of the petition ‘could have been ․ raised on direct appeal or by a motion pursuant to CPL article 440’ “ (People ex rel. Lewis v. Graham, 96 AD3d 1423, 1423, lv denied 19 NY3d 813;  see People ex rel. Martinez v. Graham, 98 AD3d 1312, 1312, lv denied 20 NY3d 853;  People ex rel. Lanfair v. Corcoran, 60 AD3d 1351, 1351, lv denied 12 NY3d 714).

Frances E. Cafarell

Clerk of the Court