People ex rel. Price v. West

30 A.D.3d 852, 816 N.Y.S.2d 690

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 22, 2006
• Status: Published

Opinion

Spain, J.

Appeal from a judgment of the Supreme Court (O’Brien III, J.), entered July 7, 2004 in Chemung County, which dismissed petitioner’s application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

Petitioner, an inmate at Elmira Correctional Facility in Chemung County, commenced this CPLR article 70 proceeding for habeas corpus relief challenging the calculation of his conditional release date. Supreme Court dismissed the petition, prompting this appeal.

We affirm. Even assuming that petitioner is correct in his assertion that his conditional release date was miscalculated, he would not have been entitled to immediate release from prison and, therefore, habeas corpus relief is not the proper remedy and his petition was properly dismissed (see People ex rel. Vasquez v Filion, 22 AD3d 991, 992 [2005]; People ex rel. Buroughs v Travis, 273 AD2d 560, 560 [2000]; People ex rel. Wilson v Hanslmaier, 232 AD2d 702, 702 [1996]).

Although conversion to a CPLR article 78 special proceeding is generally available to this Court (see CPLR 103 [c]; see e.g. People ex rel. Buroughs v Travis, supra at 560), it would be pointless since petitioner filed the habeas corpus petition well after the expiration of the four-month statute of limitations period (see CPLR 217; see also People ex rel. Rossano v Schriver, 268 AD2d 912, 913-914 [2000], lv denied 94 NY2d 765 [2000]; cf. People ex rel. Brown v New York State Div. of Parole, 70 NY2d 391, 398 [1987]). Petitioner’s remaining contentions are unavailing.

Cardona, PJ., Mercure, Peters and Kane, JJ., concur. Ordered that the judgment is affirmed, without costs.