| People ex rel. Black v New York State Bd. of Parole |
| 2008 NY Slip Op 06761 [54 AD3d 1077] |
| September 11, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York ex rel. Richard Black,Appellant, v New York State Board of Parole et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (David M. Finkelstein of counsel), forrespondents.
Appeal from a judgment of the Supreme Court (O'Shea, J.), entered December 19, 2007 inChemung County, which denied petitioner's application for a writ of habeas corpus, in aproceeding pursuant to CPLR article 70, without a hearing.
Following his conviction of criminal possession of a controlled substance in the fourthdegree, petitioner was sentenced as a second felony drug offender to 2½ years in prison, tobe followed by two years of postrelease supervision. The sentence and commitment orderdirected that petitioner serve his time under parole supervision at Willard Drug Treatment Centerin Seneca County (hereinafter the Center). He agreed to the terms of his release and was receivedat the Center as a judicially sanctioned parolee on May 19, 2006. Petitioner, however,subsequently violated the terms of his release by failing to complete the drug treatment programat the Center and by threatening a correction officer. He was served with a notice of violationand, following a hearing in January 2007, his parole was revoked and a delinquent timeassessment of 24 months was imposed. Thereafter, petitioner commenced this habeas corpusproceeding challenging his detention following the revocation of his parole. Supreme Courtdenied the application without a [*2]hearing and this appealensued.
In support of his application, petitioner asserts that the revocation of his parole was improperbecause he was not given a competent mental health evaluation prior to being sentenced tomandatory participation in the drug treatment program. Inasmuch as petitioner's claim directlyimplicates the sentence, it could have been raised on direct appeal or in a CPL article 440 motionand, therefore, habeas corpus relief is unavailable (see People ex rel. Johnson v Lacy, 243AD2d 915 [1997], lv denied 91 NY2d 806 [1998]). Furthermore, even if petitioner'sclaim were true, he would not be entitled to immediate release from prison and habeas corpusrelief is unavailable for this reason as well (see People ex rel. Price v West, 30 AD3d 852, 853 [2006]).Accordingly, Supreme Court properly denied petitioner's application.
Peters, J.P., Rose, Kane, Malone Jr. and Stein, JJ., concur. Ordered that the judgment isaffirmed, without costs.