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