People ex rel. Branch v. Barnes
| Decision Date | 16 December 1993 |
| Citation | 605 N.Y.S.2d 479,199 A.D.2d 726 |
| Parties | The PEOPLE of the State of New York ex rel. Vraden BRANCH, Appellant, v. William BARNES et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Vraden Branch, in pro per.
Robert Abrams, Atty. Gen. (Troy J. Oechsner, of counsel), Albany, for respondent.
Before WEISS, P.J., and YESAWICH, CREW and CASEY, JJ.
Appeal from a judgment of the Supreme Court (Lynch, J.), entered January 11, 1993 in Schenectady County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 70 after a hearing.
Although a habeas corpus proceeding is generally the appropriate means to challenge a revocation of parole, such a remedy is not available where, as here, petitioner is not entitled to immediate release from custody (see, e.g., People ex rel. Dell v. Walker, 186 A.D.2d 1043, 588 N.Y.S.2d 685, lv. denied 81 N.Y.2d 702, 594 N.Y.S.2d 716, 610 N.E.2d 389). Petitioner's appropriate procedural remedy, as recognized by the parties, is a CPLR article 78 proceeding, and we therefore convert the petition (see, id.; see also, CPLR 103[c].
On the merits, contrary to petitioner's assertion, possession of an inoperable weapon may indeed constitute a violation of parole (see, People ex rel. Gillispie v. Warden of House of Detention for Men, 191 A.D.2d 161, 162, 594 N.Y.S.2d 184; People ex rel. Walker v. Hammock, 78 A.D.2d 369, 372-373, 435 N.Y.S.2d 410). As there is ample evidence to support the determination that petitioner violated a condition of his parole, the petition must be dismissed.
ORDERED that the judgment is reversed, on the law, without costs, matter converted to a proceeding pursuant to CPLR article 78 and petition dismissed.
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