PEOPLE JOHNSON v. LACY (1997)

Appeal from a judgment of the Supreme Court (Demarest, J.), entered April 22, 1997 in Franklin County, which dismissed petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

In 1985, petitioner was sentenced as a second felony offender to an indeterminate term of imprisonment of 61/212 to 13 years.   He was paroled in 1993;  however, in 1994 he was convicted of the crime of robbery in the third degree, receiving a sentence of six months in jail and five years' probation.   Following his release, petitioner was again involved in the criminal justice system, pleading guilty on April 5, 1996 to a class A misdemeanor for which he received a one-year sentence of imprisonment.   Thereafter, his 1994 probationary sentence was revoked and petitioner was resentenced to a 4 2/3 to 14-year term of imprisonment.   He then commenced this proceeding for a writ of habeas corpus challenging his resentencing on the ground that the 1994 sentence of probation was illegal.   Supreme Court dismissed the petition and we affirm.   Habeas corpus relief is unavailable where, as here, petitioner's claim has been or may be raised on his direct appeal or in a postjudgment motion pursuant to CPL article 440 (see, People ex rel. Sims v. Senkowski, 226 A.D.2d 800, 640 N.Y.S.2d 820, lv. denied 88 N.Y.2d 807, 647 N.Y.S.2d 165, 670 N.E.2d 449).

ORDERED that the judgment is affirmed, without costs.

MEMORANDUM DECISION.