People ex rel. Caswell v. New York State Division of Parole

Appellate Division of the Supreme Court of New York

People ex rel. Caswell v. New York State Division of Parole

11 A.D.3d 1008, 782 N.Y.S.2d 230, 2004 N.Y. App. Div. LEXIS 11323

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

DecidedOctober 1, 2004

StatusPublished

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This text of 11 A.D.3d 1008 (People ex rel. Caswell v. New York State Division of Parole) 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.

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People ex rel. Caswell v. New York State Division of Parole, 11 A.D.3d 1008, 782 N.Y.S.2d 230, 2004 N.Y. App. Div. LEXIS 11323 (N.Y. Ct. App. 2004).

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from a judgment (denominated order and judgment) of the Supreme Court, Onondaga County (John J. Brunetti, A.J.), entered December 24, 2003 in a proceeding pursuant to CPLR article 70. The judgment dismissed the petition for a writ of habeas corpus.

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

Memorandum: Supreme Court properly dismissed the petition seeking a writ of habeas corpus. Contrary to petitioner’s contention, respondent established at the hearing that petitioner waived his right to a preliminary parole revocation hearing (cf. People ex rel. Melendez v Warden of Rikers Is. Correctional Facility, 214 AD2d 301, 302-303 [1995]). There also is no merit to the contention of petitioner that he is entitled to immediate [1009]*1009release because respondent did not file or serve a return in accordance with CPLR 7008. “All of the requirements of CPLR 7008 (subd [b]) were met at the outset of the appearance on behalf of the respondent on the return date and, accordingly, the absence of a formal return was an irregularity and not a defect which could be determinative of [the matter]” (People ex rel. Pray v Allen, 63 AD2d 1056, 1056 [1978], lv denied 45 NY2d 774 [1978]). Present—Pigott, Jr., P.J., Hurlbutt, Gorski and Lawton, JJ.

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from a judgment (denominated order and judgment) of the Supreme Court, Onondaga County (John J. Brunetti, A.J.), entered December 24, 2003 in a proceeding pursuant to CPLR article 70. The judgment dismissed the petition for a writ of habeas corpus.

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

Memorandum: Supreme Court properly dismissed the petition seeking a writ of habeas corpus. Contrary to petitioner’s contention, respondent established at the hearing that petitioner waived his right to a preliminary parole revocation hearing (cf. People ex rel. Melendez v Warden of Rikers Is. Correctional Facility, 214 AD2d 301, 302-303 [1995]). There also is no merit to the contention of petitioner that he is entitled to immediate [1009]*1009release because respondent did not file or serve a return in accordance with CPLR 7008. “All of the requirements of CPLR 7008 (subd [b]) were met at the outset of the appearance on behalf of the respondent on the return date and, accordingly, the absence of a formal return was an irregularity and not a defect which could be determinative of [the matter]” (People ex rel. Pray v Allen, 63 AD2d 1056, 1056 [1978], lv denied 45 NY2d 774 [1978]). Present—Pigott, Jr., P.J., Hurlbutt, Gorski and Lawton, JJ.

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11 A.D.3d 1008, 782 N.Y.S.2d 230, 2004 N.Y. App. Div. LEXIS 11323, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-ex-rel-caswell-v-new-york-state-division-of-parole-nyappdiv-2004.

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