People ex rel. Johnson v. New York State Board of Parole

Appellate Division of the Supreme Court of New York

People ex rel. Johnson v. New York State Board of Parole

98 A.D.2d 949, 470 N.Y.S.2d 62, 1983 N.Y. App. Div. LEXIS 21265

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

DecidedDecember 16, 1983

StatusPublished

This text of 98 A.D.2d 949 (People ex rel. Johnson v. New York State Board 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.

Bluebook

People ex rel. Johnson v. New York State Board of Parole, 98 A.D.2d 949, 470 N.Y.S.2d 62, 1983 N.Y. App. Div. LEXIS 21265 (N.Y. Ct. App. 1983).

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Opinion

— Judgment unanimously reversed, order converting petition to a CPLR article 78 proceeding vacated, petition for writ of habeas corpus reinstated, respondents directed to serve their answer within 10 days of service of the order herein with notice of entry and matter remitted to Supreme Court, Cayuga County, for further proceedings, in accordance with the following memorandum: The court, sua sponte, erroneously converted this proceeding for a writ of habeas corpus into [950]*950an article 78 proceeding and then, on motion of respondents, dismissed the petition as untimely (see CPLR 217). Petitioner’s proper remedy is habeas corpus (see Matter of Schwartz v Warden, 82 AD2d 870). His petition alleges that his final parole revocation hearing was held in his absence and that he did not waive his right to be present. Since these allegations have not been answered, the matter must be remitted and respondents are directed to serve their answer within 10 days of service of the order entered hereon. If required by the pleadings, Supreme Court shall conduct a hearing but, in any event, it shall enter an appropriate judgment (see People ex rel. Martinez v New York State Bd. of Parole, 56 NY2d 588, 590). (Appeal from judgment of Supreme Court, Cayuga County, Contiguglia, J.. — habeas corpus.) Present — Dillon, P. J., Doerr, Denman, O’Donnell and Moule, JJ.

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— Judgment unanimously reversed, order converting petition to a CPLR article 78 proceeding vacated, petition for writ of habeas corpus reinstated, respondents directed to serve their answer within 10 days of service of the order herein with notice of entry and matter remitted to Supreme Court, Cayuga County, for further proceedings, in accordance with the following memorandum: The court, sua sponte, erroneously converted this proceeding for a writ of habeas corpus into [950]*950an article 78 proceeding and then, on motion of respondents, dismissed the petition as untimely (see CPLR 217). Petitioner’s proper remedy is habeas corpus (see Matter of Schwartz v Warden, 82 AD2d 870). His petition alleges that his final parole revocation hearing was held in his absence and that he did not waive his right to be present. Since these allegations have not been answered, the matter must be remitted and respondents are directed to serve their answer within 10 days of service of the order entered hereon. If required by the pleadings, Supreme Court shall conduct a hearing but, in any event, it shall enter an appropriate judgment (see People ex rel. Martinez v New York State Bd. of Parole, 56 NY2d 588, 590). (Appeal from judgment of Supreme Court, Cayuga County, Contiguglia, J.. — habeas corpus.) Present — Dillon, P. J., Doerr, Denman, O’Donnell and Moule, JJ.

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Bluebook (online)

98 A.D.2d 949, 470 N.Y.S.2d 62, 1983 N.Y. App. Div. LEXIS 21265, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-ex-rel-johnson-v-new-york-state-board-of-parole-nyappdiv-1983.

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