People ex rel. Carter v Smith

2015 NY Slip Op 09343 [134 AD3d 1338]

December 17, 2015

Appellate Division, Third Department

As corrected through Wednesday, February 11, 2015

[*1]

The People of the State of New York ex rel. ShaliekCarter, Appellant, v Brandon J. Smith, as Superintendent of Greene Correctional Facility,Respondent.

Shaliek Carter, Coxsackie, appellant pro se.

Eric T. Schneiderman, Attorney General, Albany (Owen Demuth of counsel), forrespondent.

Appeal from a judgment of the Supreme Court (Elliott, J.), entered March 18, 2015in Greene County, which dismissed petitioner's application for a writ of habeas corpus, ina proceeding pursuant to CPLR article 70, without a hearing.

Petitioner was sentenced to 31/2 years in prison following his 2002conviction of robbery in the second degree.^[FN*] In 2007, petitioner was sentenced to aprison term of 13 years and five years of postrelease supervision following his convictionof attempted robbery in the first degree. Petitioner commenced this CPLR article 70proceeding for habeas corpus relief asserting that, because he served three years of anillegally imposed period of postrelease supervision in connection with the 2002conviction, his due process rights were violated and he is entitled to immediate release.Supreme Court dismissed the petition without a hearing and this appeal ensued.

We affirm. "Entitlement to immediate release from prison, which does not occur until[*2]the expiration of an inmate's sentence, is aprerequisite for habeas corpus relief" (People ex rel. Justice v Racette, 111 AD3d 1041, 1042[2013], lv denied 22 NY3d 861 [2014] [internal quotation marks and citationsomitted]; see People ex rel.Porter v Napoli, 56 AD3d 830, 831 [2008]). Petitioner is currently serving theunexpired term of his 2007 sentence, which is completely unrelated to his 2002 sentence.As such, petitioner would not be entitled to immediate release and, therefore, a writ ofhabeas corpus cannot be granted (see People ex rel. Vickery v Griffin, 125 AD3d 1018, 1019[2015], lv denied 25 NY3d 908 [2015]; People ex rel. Justice v Racette, 111 AD3d 1041, 1042[2013], lv denied 22 NY3d 861 [2014]).

Peters, P.J., Lahtinen, Rose and Lynch, JJ., concur. Ordered that the judgment isaffirmed, without costs.

Footnote *:Petitioner wasresentenced in 2012 to the same 31/2-year prison term but the five-yearperiod of postrelease supervision that was administratively imposed by the Department ofCorrections and Community Supervision was removed.