Opinion
June 8, 1981
In a proceeding pursuant to CPLR article 78 to compel recalculation of petitioner's sentence in accordance with subdivision 2 of section 70.25 Penal of the Penal Law, petitioner appeals from a judgment of the Supreme Court, Dutchess County (Quinn, J.), dated December 17, 1979, which dismissed his petition. Judgment affirmed, without costs or disbursements. Petitioner seeks to utilize this article 78 proceeding to contest the Trial Judge's finding that the crimes of robbery and assault were separate and distinct acts under the facts of the case. Prior to this proceeding, however, petitioner took a direct appeal from his judgment of conviction in which he challenged the propriety of his sentence under section 70.30 Penal of the Penal Law (see People v Pritchard, 55 A.D.2d 661). There was no valid reason for petitioner not raising the claims he asserts here on his prior appeal and, as stated in Matter of Banks v Blyn ( 72 A.D.2d 512), "The extraordinary remedies provided by CPLR article 78 are not to be used as substitutes for appellate review when, as here, the latter would be available and adequate." Hopkins, J.P., Gibbons, O'Connor and Thompson, JJ., concur.