PEOPLE v. ROBERT A. KIRKPATRICK

It is hereby ordered that the judgment so appealed from is unanimously affirmed without costs.

Memorandum: Supreme Court properly dismissed the petition for a writ of habeas corpus. The contention of petitioner that he was improperly sentenced as a persistent violent felony offender could have been raised on direct appeal from the judgment of conviction or by way of a motion pursuant to CPL article 440 and thus habeas corpus relief does not lie ( see People ex rel. Sims v Senkowski, 226 AD2d 800, lv denied 88 NY2d 807; see generally People ex rel. Johnson v Graham, 67 AD3d 1452, lv denied 14 NY3d 704).