People ex rel. Bernzott v. Murray

12 A.D.3d 1102, 784 N.Y.S.2d 402, 2004 N.Y. App. Div. LEXIS 13840

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 19, 2004
• Status: Published

Opinion

Appeal from a judgment (denominated order) of the Supreme Court, Erie County (Mario J. Rossetti, A.J.), entered December 12, 2003. The judgment converted the petition under CPLR article 70 to one under CPLR article 78 and denied the petition.

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

Memorandum: The sole contention of petitioner on appeal is that he is entitled to habeas corpus relief because he remains incarcerated past the date of his conditional release. “Contrary to petitioner’s contention, ‘it is within the discretion of the Division [of Parole] to impose the special condition of securing approved housing, even though the condition must be satisfied before his request of conditional release can be granted’ ” (People ex rel. Beam v Hodges, 286 AD2d 936, 937 [2001]). “[Prisoners have no right to be released prior to the expiration of their sentences” and thus, because petitioner is not entitled to immediate release, habeas corpus relief does not lie (People ex rel. Sansalone v Schriver, 252 AD2d 605, 605 [1998]; see People ex rel. Gloss v Costello, 309 AD2d 1160, 1160-1161 [2003], lv denied 1 NY3d 504 [2003]; Beam, 286 AD2d at 937). Present— Pigott, Jr., PJ., Pine, Scudder, Martoche and Lawton, JJ.