| People ex rel. Donato v Kirkpatrick |
| 2010 NY Slip Op 03995 [73 AD3d 1450] |
| May 7, 2010 |
| Appellate Division, Fourth Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| The People of the State of New York ex rel. David Donato, Appellant, v Robert A. Kirkpatrick, Superintendent, Wende Correctional Facility, Respondent. |
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Appeal from a judgment (denominated order) of the Supreme Court, Erie County (John L. Michalski, A.J.), entered January 12, 2009 in a habeas corpus proceeding. The judgment dismissed the petition.
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 AD2d 800 [1996], lv denied 88 NY2d 807 [1996]; see generally People ex rel. Johnson v Graham, 67 AD3d 1452 [2009], lv denied 14 NY3d 704 [2010]). Present—Scudder, P.J., Martoche, Lindley, Green and Gorski, JJ.