| People ex rel. Goldberg v Warden of Rikers Is. CorrectionalFacility |
| 2007 NY Slip Op 08756 [45 AD3d 356] |
| November 13, 2007 |
| Appellate Division, First Department |
| The People of the State of New York ex rel. Harry Goldberg,Appellant, v Warden of Rikers Island Correctional Facility,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, New York City (Justin R. Long of counsel), forrespondent.
Order, Supreme Court, Bronx County (Thomas Farber, J.), entered February 10, 2006, whichdenied petitioner's application for a writ of habeas corpus and dismissed the proceeding,unanimously affirmed, without costs.
As petitioner is no longer in the custody of respondent Warden and could not be immediatelyreleased, the remedy of habeas corpus is unavailable (see People ex rel. Brown v New YorkState Div. of Parole, 70 NY2d 391, 398 [1987]). Nevertheless, this proceeding is not mootbecause, inter alia, it affects parole time credited to petitioner. Therefore, we consider the matteras a proceeding pursuant to CPLR article 78 (see CPLR 103 [c]).
The petition was properly denied on the ground that the preliminary parole revocationhearing was timely scheduled for November 28, 2005, and was adjourned for the legitimatereason that petitioner was confined for medical reasons (see People ex rel. Moore v Warden of Rikers Is. Correctional Facility,36 AD3d 494 [2007]). Respondent Division of Parole also acted "energetically andscrupulously" in rescheduling the hearing for December 5, 2005, when it learned of petitioner'srelease from that confinement (see People ex rel. Burley v Warden, N.Y. City House ofDetention at Riker's Is., 70 AD2d 518, 519 [1979], lv denied 48 NY2d 602 [1979]),and petitioner has not cited any prejudice from the short delay. Concur—Tom, J.P.,Friedman, Gonzalez, Sweeny and Kavanagh, JJ.