| People ex rel. Flax v Donelli |
| 2007 NY Slip Op 07045 [43 AD3d 1259] |
| September 27, 2007 |
| Appellate Division, Third Department |
| The People of the State of New York ex rel. Newnon A. Flax,Appellant, v John J. Donelli, as Superintendent of Bare Hill Correctional Facility,Respondent. |
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Petitioner was convicted of rape in the first degree with respect to one victim, and robbery inthe second degree and burglary in the second degree with respect to a second victim. He wassentenced, respectively, to concurrent terms of 12½ to 25 years, 7½ to 15 years and7½ to 15 years in prison. The Appellate Division, Fourth Department subsequently ruledthat consecutive sentences should have been imposed under Penal Law § 70.25 (2-b) in theabsence of mitigating circumstances (People v Flax, 155 AD2d 894 [1989], lvdenied 76 NY2d 734 [1990]). Consequently, it vacated the sentence and remanded the matterfor resentencing. Petitioner was thereafter resentenced to the same terms of imprisonment;however, the sentences for the robbery and burglary convictions were directed to run concurrentto one another and consecutive to the sentence imposed on the rape conviction. Petitionerbrought the instant habeas corpus proceeding challenging the resentencing. Supreme Courtdismissed the petition without a hearing, resulting in this appeal.
We affirm. Petitioner's challenge to the resentencing could have been raised on direct appealor in a CPL article 440 motion. Inasmuch as he failed to do so, habeas corpus relief isunavailable (see People ex rel. Warren vArtus, 17 AD3d 896, 896-897 [2005], lv denied 5 NY3d 705 [2005]; Peopleex rel. Johnson v Lacy, 243 AD2d 915 [1997], lv denied 91 NY2d 806[*2][1998]). Therefore, Supreme Court properly dismissed the petition.
Peters, J.P., Mugglin, Rose, Lahtinen and Kane, JJ., concur. Ordered that the judgment isaffirmed, without costs.