| People ex rel. Shannon v Khahaifa |
| 2010 NY Slip Op 05201 [74 AD3d 1867] |
| June 11, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York ex rel. Archie Shannon,Appellant, v Sibatu Khahaifa, Superintendent, Orleans Correctional Facility, et al.,Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marlene O. Tuczinski of counsel), forrespondents-respondents.
Appeal from a judgment (denominated order) of the Supreme Court, Orleans County (JamesP. Punch, A.J.), entered August 13, 2008. The judgment denied the petition for a writ of habeascorpus.
It is hereby ordered that the judgment so appealed from is unanimously affirmed withoutcosts.
Memorandum: Petitioner commenced this proceeding seeking a writ of habeas corpus on thegrounds that, inter alia, the determination that he violated a condition of his parole was arbitraryand capricious, and the time assessment for the violation was excessive. We conclude thatSupreme Court properly denied the petition.
Contrary to the contention of petitioner, the evidence adduced at the final parole revocationhearing "was sufficient to prove by a preponderance of the evidence that [he] violated acondition of parole" (People ex rel. Peters v Walker, 262 AD2d 1025 [1999], lvdenied 93 NY2d 819 [1999]). "While petitioner also seeks to challenge the length of his timeassessment, habeas corpus relief is not appropriate because, even if his contention[ ] ha[s] merit,he would not be entitled to immediate release from prison" (People ex rel. Muhammad v Bradt, 68 AD3d 1391, 1392 [2009];see People ex rel. Leggett v Leonardo, 274 AD2d 699 [2000]). For the same reason, weconclude that habeas corpus relief is not appropriate based on the contention of petitioner that hewas denied effective assistance of counsel at the final parole revocation hearing (see Peopleex rel. Santoro v Hollins, 273 AD2d 829 [2000]; People ex rel. Kinzer v Williams,256 AD2d 1240 [1998]; see generally People ex rel. Douglas v Vincent, 50 NY2d 901,903 [1980]). "Although this Court has the power to convert a habeas corpus proceeding into aCPLR article 78 proceeding . . . , we decline to do so because we do not consider itappropriate on this [*2]record" (People ex rel. Brown vMcCoy, 266 AD2d 805 [1999], lv denied 94 NY2d 760 [2000]).Present—Smith, J.P., Lindley, Sconiers, Pine and Gorski, JJ.