
    The People of the State of New York ex rel. Allen Proctor, Appellant, v Robert J. Henderson, as Superintendent of the Auburn Correctional Facility, Respondent.
   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 AD2d 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. (Appeal from judgment of Cayuga Supreme Court — habeas corpus.) Present — Cardamone, J. P., Hancock, Jr., Doerr, Witmer and Moule, JJ.  