People ex rel. Johnson v. Kracke

233 A.D.2d 943, 649 N.Y.S.2d 880, 1996 N.Y. App. Div. LEXIS 13505

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 8, 1996
• Status: Published

Opinion

Judgment unanimously affirmed without costs. Memorandum: Relator appeals from two judgments of Supreme Court, each dismissing a petition for a writ of habeas corpus. Relator was serving a sentence of 21/s to 7 years’ incarceration imposed in 1992 when he was released from prison to participate in a work release program. While on work release, relator was charged with and convicted of a new crime in Jefferson County, and he was sentenced to a term of incarceration of 2 to 4 years, to be served consecutive to his 1992 sentence.

Relator contends that he has been denied appropriate credit against his initial sentence for 330 days that he spent at the Jefferson County jail on the second charge. Regardless of the merits of that contention, relator is not entitled to immediate release from custody and, thus, habeas corpus relief is not available (see, People ex rel. Travis v Coombe, 219 AD2d 881, ; People ex rel. Mabery v Leonardo, 177 AD2d 766, lv denied 79 NY2d 753).

"Although this Court has the power to convert a petition for a writ of habeas corpus into a CPLR article 78 petition [citation omitted], relator has not requested that relief and on this record we do not consider it appropriate” (People ex rel. Travis v Coombe, supra, at 882). (Appeal from Judgment of Supreme Court, Wayne County, Strobridge, J.—Habeas Corpus.) Present—Pine, J. P., Fallon, Callahan, Balio and Davis, JJ.