
    People ex rel. Nathan Lewis, Appellant, v Harold D. Graham, Superintendent, Auburn Correctional Facility, Respondent.
    [945 NYS2d 903]
   Appeal from a judgment (denominated order) of the Supreme Court, Cayuga County (Thomas G. Leone, A.J.), entered March 7, 2011 in a proceeding pursuant to CPLR article 70. The judgment granted the motion of respondent to dismiss and dismissed the petition for a writ of habeas corpus.

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

Memorandum: Petitioner commenced this proceeding seeking a writ of habeas corpus. We conclude that Supreme Court properly dismissed the petition. Habeas corpus relief is unavailable because petitioner’s contention in support of the petition “could have been, or [was], raised on direct appeal or by a motion pursuant to CPL article 440” (People ex rel. Mills v Poole, 55 AD3d 1289, 1290 [2008], lv denied 11 NY3d 712 [2008]; see People ex rel. Robinson v Graham, 68 AD3d 1706 [2009], lv denied 14 NY3d 706 [2010]). “Habeas corpus relief also is unavailable because petitioner would not be entitled to immediate release from custody even in the event that his contention [ ] had merit” (People ex rel. Almodovar v Berbary, 67 AD3d 1419, 1420 [2009], lv denied 14 NY3d 703 [2010]; see People ex rel. Kaplan v Commissioner of Correction of City of N.Y., 60 NY2d 648, 649 [1983]). Finally, “[b]ecause the petition lacked any justiciable basis upon which a writ of habeas corpus could be sustained, the court did not abuse its discretion in denying petitioner’s application for assigned counsel” (People ex rel. Gloss v Costello, 309 AD2d 1160, 1161 [2003], lv denied 1 NY3d 504 [2003] [internal quotation marks omitted]; see People ex rel. Hinton v Graham, 66 AD3d 1402, 1402 [2009], lv denied 13 NY3d 934 [2010], rearg denied 14 NY3d 795 [2010]). Present—Centra, J.P., Fahey, Peradotto, Carni and Sconiers, JJ.  