MONTGOMERY, MITCHELL v. ARTUS, DALE

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department KAH 12-00123 PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, LINDLEY, AND SCONIERS, JJ.

THE PEOPLE OF THE STATE OF NEW YORK EX REL.

MITCHELL MONTGOMERY, PETITIONER-APPELLANT, V MEMORANDUM AND ORDER DALE ARTUS, SUPERINTENDENT, GOWANDA CORRECTIONAL FACILITY, RESPONDENT-RESPONDENT.

DAVID J. PAJAK, ALDEN, FOR PETITIONER-APPELLANT.

Appeal from a judgment of the Supreme Court, Erie County (Russell P. Buscaglia, A.J.), entered November 29, 2011 in a habeas corpus proceeding. The judgment denied the petition.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.

Memorandum: Petitioner commenced this proceeding seeking a writ of habeas corpus on the ground that he was improperly sentenced as a persistent violent felony offender on his 1998 conviction of burglary in the second degree (Penal Law § 140.25 [2]). We conclude that Supreme Court properly denied the petition. “Habeas corpus relief is unavailable because petitioner’s contention[s] in support of the petition ‘could have been . . . raised on direct appeal or by a motion pursuant to CPL article 440’ ” (People ex rel. Lewis v Graham, 96 AD3d 1423, 1423, lv denied 19 NY3d 813; see People ex rel. Martinez v Graham, 98 AD3d 1312, 1312, lv denied 20 NY3d 853; People ex rel.

Lanfair v Corcoran, 60 AD3d 1351, 1351, lv denied 12 NY3d 714).

Entered: February 7, 2014 Frances E. Cafarell Clerk of the Court