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

118
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
