| People ex rel. Hall v Brown |
| 2010 NY Slip Op 05305 [74 AD3d 1596] |
| June 17, 2010 |
| Appellate Division, Third Department |
| The People of the State of New York ex rel. Bryant K. Hall,Appellant, v William Brown, as Superintendent of Eastern Correctional Facility,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Kathleen M. Arnold of counsel), forrespondent.
Appeal from a judgment of the Supreme Court (Zwack, J.), entered September 4, 2009 inUlster County, which dismissed petitioner's application for a writ of habeas corpus, in aproceeding pursuant to CPLR article 70, without a hearing.
After pleading guilty to various crimes including attempted murder, rape, burglary, robberyand assault, petitioner was sentenced in 2002 to an aggregate prison term of 20 years, but duringsentencing, County Court (Braslow, J.) failed to pronounce the postrelease supervisioncomponent of his sentence. Petitioner was thereafter resentenced, in 2006, to the same terms ofimprisonment, but the court further ordered five years of postrelease supervision on each count,to be served concurrently. Petitioner then initiated this habeas corpus proceeding to challenge hisresentencing. Supreme Court dismissed the petition without a hearing, resulting in this appeal.
We affirm. Inasmuch as petitioner's challenge to his resentencing could have been raised ondirect appeal or in a CPL article 440 motion, habeas corpus relief is unavailable (see People ex rel. Funches v Walsh, 48AD3d 849, 849 [2008], appeal denied 10 NY3d 707 [2008]; People ex rel. Flax v Donelli, 43 AD3d1259, 1260 [2007], appeal dismissed 9 NY3d 1029 [2008]). Moreover, even ifpetitioner's contentions were to have merit, his application was properly dismissed because hewould not be entitled to immediate release from prison (see [*2]People ex rel. Spaulding vWoods, 63 AD3d 1456, 1457 [2009]; People ex rel. Funches v Walsh, 48 AD3dat 849).
Peters, J.P., Spain, Lahtinen, Stein and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed, without costs.