People ex rel. Mabery v. Leonardo

177 A.D.2d 766, 575 N.Y.S.2d 745, 1991 N.Y. App. Div. LEXIS 14354

Opinion

Appeal from a judgment of the Supreme Court (Hemmett, Jr., J.), entered April 8, 1991 in Washington County, which, inter alia, dismissed petitioner’s application, in a proceeding pursuant to CPLR article 70, after a hearing.

We agree with Supreme Court’s determination that petitioner was not entitled to habeas corpus relief. His 25-year New York prison sentence will not expire until 1999 and it is this date, not the original conditional release date of February 21, 1991, which is the point in time at which the right to release would accrue (see, People ex rel. Miranda v Kuhlmann, 127 AD2d 924, lv denied 69 NY2d 612). Thus, even if we accept petitioner’s claim that his New York and North Carolina sentences ran concurrently, no habeas corpus relief would lie because his New York sentence has still not expired. In addition, putting aside the question of whether Supreme Court properly converted the matter to a CPLR article 78 proceeding, such a proceeding was time barred (see, CPLR 217; Matter of Bogle v Mann, 175 AD2d 409). At the latest, petitioner was notified on December 28, 1988 of the alleged improper second computation release date. This proceeding, commenced in July 1990, exceeded the four-month Statute of Limitations and was therefore untimely.

Mahoney, P. J., Casey, Levine, Mercure and Harvey, JJ., concur. Ordered that the judgment is affirmed, without costs.