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

Reset A A Font size: Print

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