JOHNSON, PHILLIP v. O'FLYNN, PATRICK

Appellate Division of the Supreme Court of New York

JOHNSON, PHILLIP v. O'FLYNN, PATRICK

141 A.D.3d 1107, 35 N.Y.S.3d 613

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 1, 2016

DocketKAH 15-00451

StatusPublished

Cited by1 cases

This text of 141 A.D.3d 1107 (JOHNSON, PHILLIP v. O'FLYNN, PATRICK) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

JOHNSON, PHILLIP v. O'FLYNN, PATRICK, 141 A.D.3d 1107, 35 N.Y.S.3d 613 (N.Y. Ct. App. 2016).

Pincite

Opinion

— Appeal from a judgment of the Supreme Court, Monroe County (John J. Ark, J.), entered March 11, 2015 in a habeas corpus proceeding. The judgment dismissed the petition.

It is hereby ordered that said appeal insofar as it concerns the finding of probable cause at the preliminary revocation hearing is unanimously dismissed and the judgment is affirmed without costs.

Memorandum: Petitioner appeals from an order dismissing his petition for a writ of habeas corpus. Although the order was subsumed in a subsequent judgment from which no appeal was taken, we exercise our discretion to treat the notice of appeal as valid and deem the appeal as taken from the judgment (see People ex rel. Cass v Khahaifa, 89 AD3d 1517, 1517-1518 *1108 [2011]; see also CPLR 5520 [c]). Petitioner’s contentions in support of his request for habeas corpus relief, however, relate to a finding at a preliminary revocation hearing that probable cause existed to believe that he violated the conditions of his release to postrelease supervision (PRS), and those contentions have been rendered moot by the revocation of his PRS following a final revocation hearing. Thus, we dismiss the appeal insofar as it concerns the finding of probable cause at the preliminary revocation hearing (see People ex rel. Chavis v McCoy, 236 AD2d 892, 892 [1997]; see also People ex rel. Campolito v Hale, 70 AD3d 1474, 1474 [2010]). Petitioner concedes that his further contention concerning the computation of his sentence was not properly raised in the context of this habeas corpus proceeding, and we do not consider it appropriate on this record to grant his request that we exercise our power under CPLR 103 (c) to convert this proceeding into a CPLR article 78 proceeding (see People ex rel. Keyes v Khahaifa, 101 AD3d 1665, 1665 [2012], lv denied 20 NY3d 862 [2013]; People ex rel. McCullough v New York State Div. of Parole, 82 AD3d 1640, 1640-1641 [2011], lv denied 17 NY3d 704 [2011]).

Present — Whalen, P.J., Peradotto, Lindley, DeJoseph and NeMoyer, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

— Appeal from a judgment of the Supreme Court, Monroe County (John J. Ark, J.), entered March 11, 2015 in a habeas corpus proceeding. The judgment dismissed the petition.

It is hereby ordered that said appeal insofar as it concerns the finding of probable cause at the preliminary revocation hearing is unanimously dismissed and the judgment is affirmed without costs.

Memorandum: Petitioner appeals from an order dismissing his petition for a writ of habeas corpus. Although the order was subsumed in a subsequent judgment from which no appeal was taken, we exercise our discretion to treat the notice of appeal as valid and deem the appeal as taken from the judgment (see People ex rel. Cass v Khahaifa, 89 AD3d 1517, 1517-1518 *1108 [2011]; see also CPLR 5520 [c]). Petitioner’s contentions in support of his request for habeas corpus relief, however, relate to a finding at a preliminary revocation hearing that probable cause existed to believe that he violated the conditions of his release to postrelease supervision (PRS), and those contentions have been rendered moot by the revocation of his PRS following a final revocation hearing. Thus, we dismiss the appeal insofar as it concerns the finding of probable cause at the preliminary revocation hearing (see People ex rel. Chavis v McCoy, 236 AD2d 892, 892 [1997]; see also People ex rel. Campolito v Hale, 70 AD3d 1474, 1474 [2010]). Petitioner concedes that his further contention concerning the computation of his sentence was not properly raised in the context of this habeas corpus proceeding, and we do not consider it appropriate on this record to grant his request that we exercise our power under CPLR 103 (c) to convert this proceeding into a CPLR article 78 proceeding (see People ex rel. Keyes v Khahaifa, 101 AD3d 1665, 1665 [2012], lv denied 20 NY3d 862 [2013]; People ex rel. McCullough v New York State Div. of Parole, 82 AD3d 1640, 1640-1641 [2011], lv denied 17 NY3d 704 [2011]).

Present — Whalen, P.J., Peradotto, Lindley, DeJoseph and NeMoyer, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

141 A.D.3d 1107, 35 N.Y.S.3d 613, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-phillip-v-oflynn-patrick-nyappdiv-2016.

Opinion

Related

Cite This Page — Counsel Stack