People ex rel. Muhammad v. Poole

287 A.D.2d 832, 731 N.Y.S.2d 408, 2001 N.Y. App. Div. LEXIS 9733

Opinion

—Appeal from a judgment of the Supreme Court (Feldstein, J.), entered December 4, 2000 in St. Lawrence County, which denied petitioner’s application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

In 1994, petitioner was convicted of robbery in the second degree. Following his release on parole, petitioner was charged with violating certain conditions, of parole including, inter alia, failing to report as instructed. A final revocation hearing resulted in the violation of probation being sustained and a 15-month time assessment imposed. Although petitioner requested an administrative appeal in July 2000, petitioner sought a writ of habeas corpus contending that the parole regulation used in assessing the parole violation punishment was an unconstitutional ex post facto law. Supreme Court denied petitioner’s application and we affirm. Inasmuch as the claim could have been raised on petitioner’s administrative appeal, habeas corpus relief is unavailable (see, People ex rel. Gaito v Couture, 269 AD2d 709, 710, lv denied 95 NY2d 754). Moreover, the challenged regulation does not violate the ex post facto doctrine inasmuch as the regulation does not constitute a law, but rather “a guideline to assist the Division of Parole in exercising its discretion to establish an appropriate penalty” (People ex rel. Persing v Lacy, 276 AD2d 815, 816).

Cardona, P. J., Mercure, Crew III, Peters and Carpinello, JJ., concur. Ordered that the judgment is affirmed, without costs.