People ex rel. Hampton v. Scully

• Decision Date: 29 October 1990
• Parties: The PEOPLE, etc., ex rel. James HAMPTON, Appellant, v. Charles J. SCULLY, etc., Respondent.
• Court: New York Supreme Court — Appellate Division

Page 482

561 N.Y.S.2d 482

166 A.D.2d 734

The PEOPLE, etc., ex rel. James HAMPTON, Appellant, v. Charles J. SCULLY, etc., Respondent.

Supreme Court, Appellate Division,

Second Department.

Oct. 29, 1990.

Petito & LaRose, Poughkeepsie (Bruce A. Petito, of counsel), for appellant.

James Hampton, pro se.

Robert Abrams, Atty. Gen., New York City (Charles C. Davis, Jr. and Burton Herman, of counsel), for respondent.

Before THOMPSON, J.P., and BROWN, KUNZEMAN and ROSENBLATT, JJ.

MEMORANDUM BY THE COURT.

In a habeas corpus proceeding, the petitioner appeals from a judgment of the Supreme Court, Dutchess County (Marlow, J.), dated February 14, 1989, which dismissed the proceeding.

ORDERED that the judgment is affirmed, without costs or disbursements.

The petitioner's claims with regard to the timeliness of the violation of probation hearing and the validity of the sentence imposed upon the petitioner's violation of probation are not reviewable in a habeas corpus proceeding because they are issues which could have or should have been raised and considered on the direct appeal from the judgment of conviction (see, e.g., People ex rel. Stewart v. People, 143 A.D.2d 1068, 533 N.Y.S.2d 597; Matter of Williams v. Scully, 135 A.D.2d 721, 522 N.Y.S.2d 621; People ex rel. Phifer v. Scully, 107 A.D.2d 729, 484 N.Y.S.2d 791). The petitioner's claim that 11 months of jail time should be credited toward his sentence because of delays in the proceedings leading to his November 1984 conviction is also not subject to review in a habeas corpus proceeding. Even if the petitioner prevailed on his claims and we found that he was eligible for parole, he would not be entitled to immediate release from custody since eligibility for parole creates only a mere possibility of release and not a legitimate expectation that parole will be granted (see, Matter of Russo v. New York State Bd. of Parole, 50 N.Y.2d 69, 75, 427 N.Y.S.2d 982, 405 N.E.2d 225). Because the petitioner would not be entitled to immediate release, habeas corpus relief is inappropriate (see, e.g., 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. Douglas v. Vincent, 50 N.Y.2d 901, 431 N.Y.S.2d 518, 409 N.E.2d 990; People ex rel. Stewart v. People, supra ). Although this court has the power to convert this branch of the petition into a proceeding pursuant to CPLR article 78 to review the calculation of the petitioner's jail...