People ex rel. DeFlumer v. Strack

• Decision Date: 06 February 1995
• Citation: 212 A.D.2d 555,623 N.Y.S.2d 1
• Parties: The PEOPLE, etc., ex rel. Carl DeFLUMER, Jr., Respondent, v. Wayne STRACK, Superintendent, etc., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 1

623 N.Y.S.2d 1

212 A.D.2d 555

The PEOPLE, etc., ex rel. Carl DeFLUMER, Jr., Respondent, v. Wayne STRACK, Superintendent, etc., Appellant.

Supreme Court, Appellate Division,

Second Department.

Feb. 6, 1995.

Dennis C. Vacco, Atty. Gen., New York City (Michael E. Timm and Ann Horowitz, of counsel), for appellant.

Ruth Cassell, New York City, for petitioner-respondent.

Before MANGANO, P.J., and BRACKEN, SULLIVAN, ALTMAN and GOLDSTEIN, JJ.

MEMORANDUM BY THE COURT.

In a habeas corpus proceeding, the respondent appeals from a judgment of the Supreme Court, Dutchess County (Dolan, J.), dated January 12, 1995, which sustained the writ and directed the respondent to discharge and release the petitioner, subject to continued supervision under the direction of the New York State Division of Parole.

ORDERED that the judgment is reversed and the proceeding is dismissed, without costs or disbursements.

The petitioner was conditionally released on September 9, 1994, subject to written special conditions (see, Executive Law §§ 259-g, 259-c; 9 NYCRR part 8003; Penal Law § 70.40). Those conditions included a requirement that he reside in an approved residence, specifically, the home of his sister in Glenmont, New York. However, on the morning of his release the petitioner's sister revoked her consent to have him live with her, and new special conditions were imposed, which included a requirement that the petitioner reside at a residential treatment facility located at the Fishkill Correctional Facility (see, Correction Law § 73[10]. The petitioner signed a form containing the modified conditions, indicating his understanding and consent thereto, as required by Executive Law § 259-g(2). He then sought relief in the nature of a writ of habeas corpus.

Habeas corpus will lie only when the petitioner is entitled to immediate release (see, People ex rel. Kaplan v. Commissioner of Correction of City of N.Y., 60 N.Y.2d 648, 467 N.Y.S.2d 566, 454 N.E.2d 1309, People ex rel. Mendolia v. Superintendent, 47 N.Y.2d 779, 417 N.Y.S.2d 932, 391 N.E.2d 1013; People ex rel. Hampton v. Scully, 166 A.D.2d 734, 561 N.Y.S.2d 482). It is an alternative remedy and "may be refused in the exercise of discretion where full relief may be obtained in other more appropriate proceedings" (People ex rel. Davis v. Arnette, 57 A.D.2d 562, 393 N.Y.S.2d 577, affd. 44 N.Y.2d 877, 407 N.Y.S.2d 629, 379 N.E.2d 157). In the instant case, the petitioner has been granted a conditional release from custody and, in effect, seeks to challenge the validity of certain of the conditions which have been...