McGivern v. Donnelly

Appellate Division of the Supreme Court of New York

McGivern v. Donnelly

285 A.D.2d 981, 727 N.Y.S.2d 683, 2001 N.Y. App. Div. LEXIS 6961

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

DecidedJuly 3, 2001

StatusPublished

This text of 285 A.D.2d 981 (McGivern v. Donnelly) 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

McGivern v. Donnelly, 285 A.D.2d 981, 727 N.Y.S.2d 683, 2001 N.Y. App. Div. LEXIS 6961 (N.Y. Ct. App. 2001).

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Opinion

—Judgment unanimously affirmed without costs. Memorandum: Supreme Court did not err in converting this habeas corpus proceeding into a CPLR article 78 proceeding because petitioner is not entitled to immediate release from custody (see, People ex rel. Jones v Russi, 199 AD2d 1043, lv denied 83 NY2d 753), and the court then properly dismissed the petition based on the failure of petitioner to exhaust his administrative remedies (see, Matter of Nelson v Coughlin, 188 AD2d 1071, appeal dismissed 81 NY2d 834; CPLR 7801 [1]). We reject petitioner’s contention that the retroactive application of 9 NYCRR 8002.6 as amended violates the constitutional prohibition against ex post facto laws (see, People ex rel. Santoro v Hollins, 273 AD2d 829). We have considered petitioner’s remaining contention and conclude that it lacks merit. (Appeal from Judgment of Supreme Court, Erie County, Mahoney, J. — CPLR art 78.) Present — Hayes, J. P., Wisner, Hurlbutt, Kehoe and Lawton, JJ.

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—Judgment unanimously affirmed without costs. Memorandum: Supreme Court did not err in converting this habeas corpus proceeding into a CPLR article 78 proceeding because petitioner is not entitled to immediate release from custody (see, People ex rel. Jones v Russi, 199 AD2d 1043, lv denied 83 NY2d 753), and the court then properly dismissed the petition based on the failure of petitioner to exhaust his administrative remedies (see, Matter of Nelson v Coughlin, 188 AD2d 1071, appeal dismissed 81 NY2d 834; CPLR 7801 [1]). We reject petitioner’s contention that the retroactive application of 9 NYCRR 8002.6 as amended violates the constitutional prohibition against ex post facto laws (see, People ex rel. Santoro v Hollins, 273 AD2d 829). We have considered petitioner’s remaining contention and conclude that it lacks merit. (Appeal from Judgment of Supreme Court, Erie County, Mahoney, J. — CPLR art 78.) Present — Hayes, J. P., Wisner, Hurlbutt, Kehoe and Lawton, JJ.

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Bluebook (online)

285 A.D.2d 981, 727 N.Y.S.2d 683, 2001 N.Y. App. Div. LEXIS 6961, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcgivern-v-donnelly-nyappdiv-2001.

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