People ex rel. Mack v. Reid

• Decision Date: 30 September 1985
• Citation: 494 N.Y.S.2d 25,113 A.D.2d 962
• Parties: The PEOPLE, etc., ex rel. Willie MACK, Appellant, v. Theodore C. REID, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 25

494 N.Y.S.2d 25

113 A.D.2d 962

The PEOPLE, etc., ex rel. Willie MACK, Appellant, v. Theodore C. REID, Respondent.

Supreme Court, Appellate Division,

Second Department.

Sept. 30, 1985.

John F. Clennan, Centereach, for appellant.

Robert Abrams, Atty. Gen., New York City (Gerald J. Ryan and Burton Herman, New York City, of counsel), for respondent.

Before MANGANO, J.P., and RUBIN, LAWRENCE and EIBER, JJ.

MEMORANDUM BY THE COURT.

In a habeas corpus proceeding, petitioner appeals from a judgment of the Supreme Court, Dutchess County, dated June 20, 1984, which dismissed the proceeding and denied the writ.

Judgment affirmed, without costs or disbursements.

A habeas corpus proceeding is generally the appropriate vehicle to review parole revocation proceedings including the issue of whether a parolee has been denied his right to a prompt final parole revocation hearing (see, People ex rel. Levy v. Dalsheim, 66 A.D.2d 827, 411 N.Y.S.2d 343, affd. 48 N.Y.2d 1019, 425 N.Y.S.2d 802, 402 N.E.2d 141; People ex rel. Menechino v. Warden, Green Haven State Prison, 27 N.Y.2d 376, 379, 318 N.Y.S.2d 449, 267 N.E.2d 238; People ex rel. Walker v. New York State Bd. of Parole, 98 A.D.2d 33, 469 N.Y.S.2d 780; People ex rel. Kellams v. Henderson, 58 A.D.2d 1022, 397 N.Y.S.2d 48; People ex rel. South v. Hammock, 80 A.D.2d 947, 438 N.Y.S.2d 34). However, it is also well established "that the remedy of habeas corpus is available only to one who is entitled to immediate release from the custody he is challenging" (People ex rel. Malinowski v. Casscles, 53 A.D.2d 954, 385 N.Y.S.2d 640, lv. denied 40 N.Y.2d 809, 392 N.Y.S.2d 1027, 360 N.E.2d 1109; People ex rel. South v. Hammock, supra). Since petitioner was convicted pursuant to a judgment rendered September 23, 1983 which serves as an independent basis for his present incarceration, it is clear that habeas corpus relief is not available to petitioner (People ex rel. Mendolia v. Superintendent, Green Haven Correctional Facility, 47 N.Y.2d 779, 417 N.Y.S.2d 932, 391 N.E.2d 1013; People ex rel. South v. Hammock, supra). Accordingly, Special Term was correct in denying the writ.

Nor did Special Term err in denying the application of petitioner's counsel, made at the hearing on the writ, to convert the habeas corpus petition to a petition for relief under CPLR article 78. At the time of the habeas corpus hearing, petitioner had already been given a final parole revocation hearing, at which time the issue of the untimeliness of said hearing had been...