People ex rel. Atkinson v. Warden of Rikers Island Correctional Facility

201 A.D.2d 271, 607 N.Y.S.2d 256, 1994 N.Y. App. Div. LEXIS 812

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 1, 1994
• Status: Published

Opinion

Judgment, Supreme Court, Bronx County (Joseph Fisch, J.), entered January 15, 1993, dismissing petitioner’s application for a writ of habeas corpus, unanimously affirmed, without costs.

The Supreme Court properly found that petitioner was timely served with the notice of charges for violation of his parole and for a preliminary hearing. The warrant against petitioner was executed on October 22, 1992. The three day period prescribed in Executive Law § 259-i (3) (c) (iii) ended on Sunday, October 25, 1992 and was, therefore, extended by operation of General Construction Law § 25-a (1) to the following day, October 26, 1992, and at that time petitioner refused to accept service. There is no dispute that he did receive service the next day, October 27, 1992. Since the evidence establishes that the delay in service that occurred herein is due to the fault or design of petitioner, he is not entitled to any relief (see, Cascione v Acme Equip. Corp., 23 AD2d 49). There is also no merit to petitioner’s contention that the writ should be granted in the interest of justice. Concur — Sullivan, J. P., Ellerin, Kupferman, Rubin and Tom, JJ.