Opinion
No. 508674.
June 24, 2010.
Appeal from a judgment of the Supreme Court (Feldstein, J.), entered September 1, 2009 in St. Lawrence County, which dented petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.
Andre Budden, Gouverneur, appellant pro se.
Before: Cardona, P.J., Spain, Lahtinen, Kavanagh and Garry, JJ.
In 1994, petitioner was convicted of murder in the second degree, two counts of robbery in the first degree and attempted robbery in the first degree, and was sentenced to an aggregate term of 873 to 25 years in prison. He brought this CPLR article 70 proceeding seeking a writ of habeas corpus on the basis that a certificate of conviction was never issued. Supreme Court denied the petition without a hearing. Petitioner appeals.
We affirm. Inasmuch as petitioner's challenge to the absence of a certificate of conviction could have been raised on direct appeal or in a CPL article 440 motion, habeas corpus is not the appropriate remedy ( see People ex rel. Green v Smith, 34 AD3d 910, 911, lv denied 8 NY3d 806; People ex rel. Burr v Duncan, 289 AD2d 898, lv denied 97 NY2d 612). In any event, even if petitioner's claim had merit, he would not be entitled to immediate release from prison in view of the valid sentence and commitment order contained in the record ( see People ex rel. Pilgrim v Greene, 16 AD3d 787, 788, lv denied 5 NY3d 706; Matter of Frazier v Greene, 10 AD3d 743).
Ordered that the judgment is affirmed, without costs.