
    The People of the State of New York ex rel. George Stewart, Appellant, v Eugene S. LeFevre, as Superintendent of Clinton Correctional Facility, Respondent.
   Kane, J.

Appeal from a judgment of the Supreme Court at Special Term (Cerrito, J.), entered September 4, 1984 in Clinton County, which denied petitioner’s application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

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 AD2d 622, 623, lv denied 60 NY2d 825). This being the case, habeas corpus does not lie (see, People ex rel. Sales v LeFevre, 93 AD2d 945, 946, lv denied 60 NY2d 558).

Judgment affirmed, without costs. Mahoney, P. J., Kane, Casey, Weiss and Levine, JJ., concur.  