           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

854
KAH 12-00565
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, VALENTINO, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK EX REL.
JAMES SMITH, PETITIONER-APPELLANT,

                     V                            MEMORANDUM AND ORDER

HAROLD D. GRAHAM, SUPERINTENDENT, AUBURN
CORRECTIONAL FACILITY, RESPONDENT-RESPONDENT.


THE STRODS LAW FIRM, AUBURN (LISA A. BLAIR OF COUNSEL), FOR
PETITIONER-APPELLANT.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (FRANK BRADY OF
COUNSEL), FOR RESPONDENT-RESPONDENT.


     Appeal from a judgment (denominated order) of the Supreme Court,
Cayuga County (Thomas G. Leone, A.J.), entered December 21, 2011 in a
proceeding pursuant to CPLR article 70. 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. In support thereof, he contended, inter alia, that
he was improperly sentenced as a persistent violent felony offender,
the evidence is legally insufficient to support the conviction of
sodomy in the first degree (Penal Law former § 130.50 [1]), and he was
denied his right to effective assistance of counsel. We conclude that
Supreme Court properly denied the petition. Those contentions could
have been raised on direct appeal or by a motion pursuant to CPL
article 440, and thus habeas corpus relief is unavailable (see People
ex rel. Donato v Kirkpatrick, 73 AD3d 1450, 1451, lv denied 15 NY3d
707; People ex rel. Mills v Poole, 55 AD3d 1289, 1290, lv denied 11
NY3d 712).




Entered:   September 27, 2013                   Frances E. Cafarell
                                                Clerk of the Court
