Judgment unanimously affirmed without prejudice to relator instituting a CPL 440.20 proceeding in New York County. Memorandum: In April, 1977 relator entered a plea of guilty to two Class D felonies. The court promised a sentence of 0 to 3 years on each plea, to run concurrently. At the time of sentencing it erroneously appeared that relator had a prior Federal felony conviction which caused the court to withdraw its promised sentence and a withdrawal of the previously entered pleas. Subsequently relator again entered guilty pleas and was sentenced as a second felony offender, an error later corrected by a resentence of 0 to 5 years as a first felony offender. He brought a motion under CPL 440.20 seeking specific performance of the originally promised sentence of 0 to 3 years. This motion was denied without a hearing. Habeas corpus will not lie where issues raised by petitioner either had been or could have been raised by direct appeal on post-conviction proceedings (People ex rel. Green v. La Vallee, 57 A.D.2d 675). While relator did not appeal his convictions or sentence, his original CPL 440.20 motion was timely commenced. This motion having been dismissed without a hearing, he should not be foreclosed from bringing another motion seeking the same relief in which the merits of his claims may be determined after a hearing.