| People ex rel. Land v State of New York |
| 2008 NY Slip Op 06908 [54 AD3d 1113] |
| September 18, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York ex rel. John Land, Appellant,v State of New York et al., Respondents. |
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Appeal from a judgment of the Supreme Court (Pulver, Jr., J.), entered December 20, 2007 inGreene County, which denied petitioner's application for a writ of habeas corpus, in a proceedingpursuant to CPLR article 70, without a hearing.
Petitioner is an inmate at Greene Correctional Facility in Greene County. He commenced thisCPLR article 70 proceeding for a writ of habeas corpus claiming that his request for parolerelease was improperly denied insofar as the Board of Parole failed to issue a written decisionsetting forth the basis for its denial. Supreme Court refused to issue the writ and deniedpetitioner's application without a hearing. Petitioner appeals.
We affirm. "It is axiomatic that the remedy of habeas corpus is available in New York only ifthe relator would be entitled to immediate release were he or she to prevail" (People ex rel.Quartararo v Demskie, 238 AD2d 792, 793 [1997], lv denied 90 NY2d 802 [1997][citations omitted]). Even if the Board failed to issue a written decision as claimed by petitioner,parole release decisions are discretionary and petitioner would not be entitled to immediaterelease from prison (see id.). Rather, the remedy would be remittal of the matter to theBoard. Accordingly, Supreme Court properly denied petitioner's application.
Cardona, P.J., Spain, Rose, Lahtinen and Malone Jr., JJ., concur. Ordered that the judgmentis affirmed, without costs.