| People ex rel. Porter v Napoli |
| 2008 NY Slip Op 08368 [56 AD3d 830] |
| November 6, 2008 |
| Appellate Division, Third Department |
| The People of the State of New York ex rel. Jason Porter,Appellant, v David Napoli, as Superintendent of Southport Correctional Facility,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Kathleen M. Arnold of counsel), forrespondent.
Appeal from a judgment of the Supreme Court (Garry, J.), entered July 3, 2007 in ChemungCounty, which denied petitioner's application for a writ of habeas corpus, in a proceedingpursuant to CPLR article 70, without a hearing.
In 1995, petitioner was convicted of criminal possession of a controlled substance in the thirddegree and was sentenced to 2 to 6 years in prison. He was subsequently released to parolesupervision on three separate occasions, but was returned to the custody of the Department ofCorrectional Services (hereinafter DOCS) as a parole violator following each release. In 2000,petitioner was convicted of criminal sale of a controlled substance in the third degree and assaultin the second degree. He was sentenced as a second felony offender to 5 to 10 years in prison onthe criminal sale conviction and three years in prison on the assault conviction, to be followed bythree years of postrelease supervision. County Court directed these sentences to run concurrentlywith one another, but did not specify the manner in which they were to run with respect to theundischarged portion of the 1995 sentence. When petitioner returned to prison, DOCS treated thesentences as running consecutively and added the undischarged portion of his 1995 sentence tothe 10-year sentence imposed in 2000 and, after deducting 221 days of jail time credit, calculatedhis maximum expiration date to be April 5, 2011.[*2]
Thereafter, petitioner brought the instant application for awrit of habeas corpus claiming that he is being illegally detained because DOCS did not properlycalculate his maximum expiration date inasmuch as it failed to count the 2000 sentences asrunning concurrently with the undischarged portion of the 1995 sentence. Respondent submittedan affirmation in opposition and Supreme Court denied the petition. This appeal ensued.
We affirm. Habeas corpus relief is available only if an inmate can demonstrate that he or sheis entitled to immediate release from prison (see People ex rel. Cropper v Taylor, 48 AD3d 852, 853 [2008],lv denied 10 NY3d 710 [2008]; People ex rel. Washington v Walsh, 43 AD3d 1217, 1217 [2007],lv denied 9 NY3d 816 [2007]). An inmate is not entitled to immediate release fromprison until the expiration of his or her sentence (see People ex rel. Richardson v West, 24 AD3d 996, 997 [2005];see also People ex rel. Price v West,30 AD3d 852, 853 [2006]; Peopleex rel. Vasquez v Filion, 22 AD3d 991, 992 [2005]). Although petitioner ascribes errorto DOCS's failure to count the 2000 sentences as running concurrently with the undischargedterm of the 1995 sentence, he would not be entitled to immediate release from prison even if thesentences were calculated to run in this manner. In such instance, the unexpired term of the 1995sentence (one year, two months and five days) would be deducted from the maximum expirationdate chosen by DOCS, resulting in a maximum expiration date of January 31, 2010. Insofar aspetitioner would not be entitled to immediate release from prison under either scenario, SupremeCourt properly dismissed the petition (see People ex rel. Harris v Fischer, 53 AD3d 632, 632 [2008]).
Mercure, J.P., Carpinello, Lahtinen, Kane and Kavanagh, JJ., concur. Ordered that thejudgment is affirmed, without costs.