The People of the State of New York ex rel. James E. McGourty, Appellant, v. Daniel Senkowski, as Superintendent of Clinton Correctional Facility, et al., Respondents

The People of the State of New York ex rel. James E. McGourty, Appellant, v Daniel Senkowski, as Superintendent of Clinton Correctional Facility, et al., Respondents. [624 NYS2d 308] [MAJORITY] —Appeal from a judgment of the Supreme Court (Lewis, J.), entered April 28, 1994 in Clinton County, which denied petitioner’s application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing. After a jury trial, petitioner was convicted of a number of crimes, including criminal possession of a weapon in the third degree and burglary in the second degree. In this proceeding, he claims that he was improperly sentenced as a persistent felon because a California burglary conviction, which was relied upon in sentencing him as a persist ent felony offender, may not be considered for purposes of enhancing a sentence in New York. We agree with Supreme Court that habeas corpus is not a proper remedy in this case. If his claim had merit, petitioner would, at most, be entitled to resentencing and not immediate release. Accordingly, habeas corpus relief does not lie. Mercure, J. P., White, Casey, Peters and Spain, JJ., concur. Ordered that the judgment is affirmed, without costs.