People ex Rel. Cotton

Not overruled or negatively treated on appealinfoCoverage
Appellate Division of the Supreme Court of New York, Third DepartmentNov 12, 1992
589 N.Y.S.2d 947 (N.Y. App. Div. 1992)
589 N.Y.S.2d 947187 A.D.2d 850

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November 12, 1992

Appeal from the Supreme Court, Clinton County (Lewis, J.).

Petitioner was convicted in 1986 of robbery in the first degree and criminal possession of a weapon in the second degree and sentenced to concurrent terms of imprisonment of 5 to 15 years. Petitioner commenced this habeas corpus proceeding essentially contending that the sentence was excessive because it was disproportionate to the severity of the crimes. Initially, we note that habeas corpus is not available to challenge a sentence which is not in excess of that authorized by statute (see, People ex rel. Aloi v LeFevre, 100 A.D.2d 662, 663). Moreover, as Supreme Court noted, habeas corpus relief is not a proper remedy where the allegations in the petition could have been raised either on direct appeal or by way of a CPL article 440 motion (see, People ex rel. Woodard v Berry, 143 A.D.2d 457, 458, lv denied 73 N.Y.2d 705; People ex rel. Rosado v Miles, 138 A.D.2d 808), and we see no reason to depart from traditional orderly procedure in this case (see, People ex rel. Grady v LeFevre, 152 A.D.2d 850, lv denied 75 N.Y.2d 702). Finally, habeas corpus is inappropriate because, even if petitioner's claim has merit, he would not be entitled to immediate release from custody (see, People ex rel. Stewart v People, 143 A.D.2d 1068, 1069; People ex rel. Knowles v Scully, 101 A.D.2d 895).

Mikoll, J.P., Yesawich Jr., Levine, Mercure and Harvey, JJ., concur. Ordered that the judgment is affirmed, without costs.

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