People ex rel. Jackson v. Morrissey

43 A.D.3d 1301, 842 N.Y.S.2d 816

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 28, 2007
• Status: Published

Opinion

Appeal from a judgment of the Supreme Court, Wayne County (Stephen R. Sirkin, A.J.), entered September 5, 2006 in a habeas corpus proceeding. The judgment dismissed the petition.

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

Memorandum: Petitioner commenced this proceeding seeking habeas corpus relief on the ground that he did not receive a written final declaration of delinquency in accordance with Executive Law § 259-i (3) (d) (iii) and 9 NYCRR 8004.3 (g) upon being charged with and convicted of a felony while on parole. We reject the contention of petitioner that he had a due process right to receive the final written declaration of delinquency when his parole was revoked and he was reincarcerated upon being charged with and convicted of the new crime {see Morrissey v Brewer, 408 US 471, 490 [1972]; see also People ex rel. Harris v Sullivan, 74 NY2d 305, 310 [1989]). “Inherent in a new felony conviction is the fact that a parole violation was sustained” (Matter of O’Quinn v New York State Bd. of Parole, 132 Misc 2d 92, 95 [1986]). Upon his conviction of a new crime, petitioner’s parole was automatically revoked by operation of law (see Matter of Thompson v New York State Div. of Parole, 171 AD2d 909 [1991]), and respondent had “a continuing, nondiscretionary, ministerial duty” to recalculate the maximum expiration date of petitioner’s sentence (People ex rel. Melendez v Bennett, 291 AD2d 590, 591 [2002], lv denied 98 NY2d 602 [2002]; see Matter of Cruz v New York State Dept, of Correctional Servs., 288 AD2d 572, 573 [2001], appeal dismissed 97 NY2d 725 [2002]). Present—Hurlbutt, J.P., Gorski, Lunn, Fahey and Peradotto, JJ.