Kane, J.
In this application for a writ of habeas corpus, defendant contends that he was unlawfully and unconstitutionally sentenced as a persistent felony offender. Special Term denied the application without a hearing, and this appeal ensued.
We affirm. The same issue asserted herein was raised by defendant on appeal from his judgment of conviction and found by this court to be without merit ( People v. Stewart, 96 A.D.2d 622, 623, lv denied 60 N.Y.2d 825). This being the case, habeas corpus does not lie ( see, People ex rel. Sales v. LeFevre, 93 A.D.2d 945, 946, lv denied 60 N.Y.2d 558).
Judgment affirmed, without costs. Mahoney, P.J., Kane, Casey, Weiss and Levine, JJ., concur.