Opinion
94896
September 16, 2004.
Before: Mercure, J.P., Peters, Spain, Mugglin and Rose, JJ., concur.
Appeal from a judgment of the Supreme Court (Berke, J.), entered July 29, 2003 in Washington County, which denied petitioner's writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.
Petitioner commenced this CPLR article 70 proceeding for a writ of habeas corpus asserting that he was improperly delivered to and accepted by the Department of Correctional Services because the certificate of conviction authorizing the execution of his sentence is defective. Supreme Court dismissed the petition and we affirm. Given the information contained in the petition, which included a final order of commitment, petitioner would not be entitled to immediate release even if successful in his argument ( see People ex rel. Burr v. Smith, 6 AD3d 841; People ex rel. Burr v. Duncan, 289 AD2d 898, lv denied 97 NY2d 612). Accordingly, habeas corpus is not available to petitioner.
Ordered that the judgment is affirmed, without costs.