People ex rel. Johnson v. Warden of Manhattan House of Detention

178 A.D.2d 331

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 24, 1991
• Status: Published

Opinion

Judgment, Supreme Court, Bronx County (John A. Milano, J.), entered on or about July 11, 1991, which dismissed petitioner’s application for a writ of habeas corpus, unanimously affirmed, without costs.

Petitioner was released on parole on December 10, 1987, and was subsequently arrested on an unrelated charge. Having failed to appear in court for further proceedings, petitioner became the subject of parole violation and bench warrants which were lodged as detainers at petitioner’s place of incarceration in South Carolina. Petitioner was returned to New York and the Division of Parole was initially so advised on March 13, 1991, but he was never "exclusively” detained on the parole violation warrant until April 4, 1991. A final parole revocation hearing was conducted on June 19, 1991, at which time parole was revoked.

We reject petitioner’s argument that his final parole revocation hearing was untimely. The record reflects that petitioner was never detained "exclusively” on the basis of the parole revocation warrant, such that he would be deemed to be within the convenience and practical control of the Division of Parole at the time it received notice of his return to this State (Executive Law § 259-i [3] [a] [iv]).

The unpublished decision and order of this Court entered herein on December 17, 1991 is hereby recalled and vacated. Concur—Murphy, P. J., Carro, Milonas and Kassal, JJ.