Opinion
No. KAH 05-02280.
December 22, 2006.
Appeal from a judgment (denominated order) of the Supreme Court, Erie County (Ronald H. Tills, A.J.), entered September 9, 2005. The judgment denied the petition for a writ of habeas corpus.
CHARLES J. GREENBERG, BUFFALO, FOR PETITIONER-APPELLANT.
ELIOT SPITZER, ATTORNEY GENERAL, ALBANY (JENNIFER GRACE MILLER OF COUNSEL), FOR RESPONDENT-RESPONDENT.
Before: Hurlbutt, J.P., Gorski, Centra and Green, JJ.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum: Supreme Court properly denied the petition seeking a writ of habeas corpus. Petitioner contends that he is entitled to immediate release because his original sentence of a term of incarceration of 25 years to life was subsequently modified to a term of incarceration of 12/12 to 25 years, and he has been incarcerated in excess of 25 years. Petitioner failed to produce any evidence that his sentence had been modified, however, and thus failed to establish that he is not properly "detained by virtue of the judgment of the court" ( People ex rel. Trainor v Baker, 89 NY 460, 465). The further contention of petitioner that his original sentence was improper is not properly raised in this proceeding because "[h]abeas corpus relief is not a proper remedy where the issues raised in the petition were, or could have been, raised on direct appeal or by a CPL article 440 motion" ( People ex rel. Abdullah v Walker, 199 AD2d 1074, 1074, lv denied 83 NY2d 752 [1994]; see People ex rel. Spencer v Burge, 307 AD2d 772, 773).