People ex rel. Baxter v. Berbary

—Appeal from a judgment (denominated order) of Supreme Court, Erie County (O’Donnell, J.), entered February 27, 2001, which dismissed the petition seeking a writ of habeas corpus.

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

Memorandum: Supreme Court properly dismissed the petition seeking a writ of habeas corpus. The issue raised in the petition could have been raised on direct appeal or by a motion pursuant to CPL article 440 (see People ex rel. Mancuso v Herbert, 256 AD2d 1158, 1159, lv denied 93 NY2d 809). Further,…