People ex rel. McGourty v. Senkowski

—Appeal from a judgment of the Supreme Court (Lewis, J.), entered April 28, 1994 in Clinton County, which denied petitioner’s application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

After a jury trial, petitioner was convicted of a number of crimes, including criminal possession of a weapon in the third degree and burglary in the second degree. In this proceeding, he claims that he was improperly sentenced as a persistent felon because a California burglary conviction, which was relied upon in sentencing him as a persist ent felony offender, may not be considered for purposes of enhancing a sentence in New York. We agree with Supreme Court that habeas corpus is not a proper remedy in this case. If his claim had merit, petitioner would, at most, be entitled to resentencing and not immediate release. Accordingly, habeas corpus relief does not lie.

*955Mercure, J. P., White, Casey, Peters and Spain, JJ., concur. Ordered that the judgment is affirmed, without costs.