People ex rel. Cook v. Mantello

136 A.D.2d 891, 525 N.Y.S.2d 79, 1988 N.Y. App. Div. LEXIS 1329

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 29, 1988
• Status: Published

Opinion

Judgment unanimously affirmed. Memorandum: The record establishes that at the time relator commenced this habeas corpus proceeding to challenge the timeliness of his parole revocation hearing, relator was incarcerated as a result of an unrelated conviction. Because he would not be eligible for immediate release from custody should he succeed on the merits of the proceeding, the remedy of habeas corpus is unavailable (People ex rel. Brown v New York State Div. of Parole, 70 NY2d 391; People ex rel. Maiello v New York State Bd. of Parole, 101 AD2d 569, 573, affd 65 NY2d 145). This court could convert this proceeding to one brought pursuant to CPLR article 78 if it had been commenced within the four-month Statute of Limitations contained in CPLR 217 (see, Matter of Soto v New York State Bd. of Parole, 107 AD2d 693, affd 66 NY2d 817), but this proceeding, commenced some eight months after relator was served with the decision to revoke parole, was properly dismissed as untimely. Moreover, were we to reach the merits, we would affirm. (Appeal from judgment of Supreme Court, Erie County, Sedita, J.—habeas corpus.) Present —Callahan, J. P., Doerr, Green, Balio and Davis, JJ.