IN RE: Gonzales MEDINA (1997)

Appeal from a judgment of the Supreme Court (Lewis, J.), entered August 26, 1996 in Clinton County, which dismissed petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

 Petitioner is currently incarcerated at Clinton Correctional Facility in Clinton County, serving a prison sentence of 15 years to life following his 1973 conviction of the crime of murder (see, People v. Medina, 47 A.D.2d 717, 366 N.Y.S.2d 609).   Petitioner's application for a writ of habeas corpus was properly dismissed by Supreme Court on the ground that the contention raised therein, i.e., that the documents committing him to prison in 1973 were deficient, could have been raised in the context of a direct appeal or a motion pursuant to CPL article 440 (see, People ex rel. Fisher v. Leonardo, 200 A.D.2d 844, 606 N.Y.S.2d 802, lv denied 83 N.Y.2d 754, 612 N.Y.S.2d 108, 634 N.E.2d 604).   We note that because petitioner is not entitled to immediate release, habeas corpus is an inappropriate remedy (see, People ex rel. Kaplan v. Commissioner of Correction of City of N.Y., 60 N.Y.2d 648, 467 N.Y.S.2d 566, 454 N.E.2d 1309;  People ex rel. Franza v. Stinson, 228 A.D.2d 843, 644 N.Y.S.2d 90, appeal dismissed 88 N.Y.2d 1015, 649 N.Y.S.2d 381, 672 N.E.2d 607).

ORDERED that the judgment is affirmed, without costs.

MEMORANDUM DECISION.