Johnson v. Thompson
| Citation | 22 N.Y.S.3d 720,134 A.D.3d 1404 |
| Parties | In the Matter of Henry JOHNSON, Petitioner, v. James THOMPSON, Superintendent, Collins Correctional Facility, Respondent. |
| Decision Date | 23 December 2015 |
| Court | New York Supreme Court Appellate Division |
134 A.D.3d 1404
22 N.Y.S.3d 720
In the Matter of Henry JOHNSON, Petitioner,
v.
James THOMPSON, Superintendent, Collins Correctional Facility, Respondent.
Supreme Court, Appellate Division, Fourth Department, New York.
Dec. 23, 2015.
Henry Johnson, Petitioner pro se.
Eric T. Schneiderman, Attorney General, Albany (Kate H. Nepveu Of Counsel), for Respondent.
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND DeJOSEPH, JJ.
MEMORANDUM:
Petitioner commenced this proceeding seeking a writ of habeas corpus pursuant to CPLR article 70, contending that the Parole Board improperly revoked his release after a final revocation hearing. Supreme Court (Feroleto, J.) denied the petition on the ground that the allegations therein, if taken as true, would not entitle petitioner to release from prison as a matter of law, but also converted the matter to a CPLR article 78 proceeding and signed an order directing respondent to appear before the court (Boller, A.J.) and to show cause why the relief requested in the petition should not be granted. The court then transferred the converted proceeding to this Court pursuant to CPLR 7804(g).
As respondent correctly concedes, the court (Feroleto, J.), upon determining that petitioner was not entitled to habeas corpus relief, erred in converting this habeas corpus proceeding into one pursuant to CPLR article 78 inasmuch as "the sole basis for petitioner's continued incarceration is the determination of the Parole Board to revoke petitioner's parole" (Matter of Zientek v. Herbert, 199 A.D.2d 1075, 1076, 606 N.Y.S.2d 479 ; see People ex
rel. Brazeau v. McLaughlin, 233 A.D.2d 724, 725, 650 N.Y.S.2d 361, lv. denied 89 N.Y.2d 810, 656 N.Y.S.2d 738, 678 N.E.2d 1354 ; People ex rel. Smith v. Mantello, 167 A.D.2d 912, 912, 561 N.Y.S.2d 866 ). Thus, there was no basis to transfer the proceeding to...
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