People ex rel. Nilsen v. Romano

149 A.D.2d 752, 540 N.Y.S.2d 534, 1989 N.Y. App. Div. LEXIS 5369

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 24, 1989
• Status: Published

Opinion

— In a habeas corpus proceeding, the petitioner appeals from a judgment of the Supreme Court, Suffolk County (Stark, J.), dated August 19, 1987, which, in effect, dismissed the writ.

Ordered that the appeal is dismissed as academic, without costs or disbursements.

In this habeas corpus proceeding, the petitioner contends that he was improperly denied contact visits while incarcerated at the Suffolk County Correctional Facility awaiting trial on robbery charges. However, it is well settled "that the remedy of habeas corpus is available only to one who is entitled to immediate release from the custody he is challenging” (People ex rel. Malinowski v Casscles, 53 AD2d 954, lv denied 40 NY2d 809). The petitioner’sjhallenge to the administrative determination denying him contact .visits would not, even if successful, entitle the petitioner to immediate release from custody. The petitioner should have proceeded in the instant matter by way of a CPLR article 78 proceeding.

In any event, we note that the issues raised on the instant appeal are academic since it appears that the petitioner is no longer incarcerated at the facility in question. Mangano, J. P., Brown, Rubin and Kooper, JJ., concur.