People ex rel. Stevenson v. Beaver

309 A.D.2d 1171, 765 N.Y.S.2d 291, 2003 N.Y. App. Div. LEXIS 10127

Opinion

Appeal from a judgment (denominated order) of Supreme Court, Orleans County (Punch, J.), entered September 13, 2001, which denied the petition seeking a writ of habeas corpus.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously modified on the law by dismissing that part of the petition seeking a writ of habeas corpus on the ground that petitioner’s sentence was miscalculated and as modified the judgment is affirmed without costs.

Memorandum: Supreme Court should have dismissed, rather than denied, that part of the petition seeking a writ of habeas corpus on the ground that petitioner’s sentence was miscalculated. Petitioner would not be entitled to immediate release even if that contention had merit (see People ex rel. Daniels v Beaver, 303 AD2d 1025 [2003]), and we therefore

modify the judgment accordingly. The court, however, properly denied that part of the petition seeking a writ of habeas corpus on the ground that petitioner’s parole was improperly revoked. Upon petitioner’s conviction of a felony committed while under parole supervision, petitioner’s parole was revoked by operation of law (see Executive Law § 259-i [3] [d] [iii]; People ex rel. Ward v Russi, 219 AD2d 862 [1995]). Therefore, contrary to petitioner’s contention, a parole revocation hearing was not required (see Ward, 219 AD2d 862 [1995]). Present — Pigott, Jr., P.J., Pine, Wisner and Kehoe, JJ.