| People ex rel. Murphy v Ewald |
| 2010 NY Slip Op 07374 [77 AD3d 778] |
| October 12, 2010 |
| Appellate Division, Second Department |
| The People of the State of New York, ex rel. Tiernan Murphy,Respondent, v Charles Ewald, Warden, Suffolk County Jail,Appellant. |
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In a proceeding pursuant to CPLR article 70 for a writ of habeas corpus, the appeal is from ajudgment of the Supreme Court, Suffolk County (Pines, J.), dated March 4, 2010, which granted thepetition and sustained the writ. By decision and order on motion of this Court dated April 22, 2010,enforcement of the judgment was stayed pending hearing and determination of the appeal.
Ordered that the judgment is reversed, on the law, without costs or disbursements, the petition isdenied, and the writ is dismissed.
In December 1989 the petitioner was convicted of criminal sale of a controlled substance in thesecond degree, a class A-II felony offense, and was sentenced to an indeterminate term ofimprisonment of five years to life. On May 24, 1994, the petitioner was released on parole and was onparole for over five consecutive years without revocation. However, in August 1999 the petitioner wascharged with a parole delinquency which resulted in revocation of his parole through March 16, 2000.Thereafter, the petitioner violated his parole on numerous occasions, and on each occasion he wasreturned to prison.
In or about January 2010, the petitioner commenced this proceeding pursuant to CPLR article 70for a writ of habeas corpus. The petitioner asserted that, based on his five years of unrevoked parolebetween 1994 and 1999, his sentence should be terminated pursuant to Executive Law § 259-j(3-a), as amended in August 2008 (see L 2008, ch 486, § 2), which mandatestermination of a sentence served for a class A felony where the person serving the sentence hascompleted three years of unrevoked parole. In a judgment dated March 4, 2010, the Supreme Courtgranted the petition and sustained the writ, directing the petitioner's release. We reverse.
The plain meaning of Executive Law § 259-j (3-a) and the legislative history of that statutedemonstrates that where a person has completed three or more years of unrevoked parole and his orher parole is subsequently revoked, such a person is not entitled to have his or her sentence terminated(see Matter of Ciccarelli v New York StateDiv. of Parole, 35 AD3d 1107, 1108 [2006]). Accordingly, while Executive Law §259-j (3-a) provides retroactive relief to those who had accrued sufficient consecutive unrevokedparole time prior to its effective date (see L 2008, ch 486, § 2), we [*2]do not interpret the statute to provide for the termination of a sentencewhere, as here, such a person's parole was revoked prior to the enactment of the statute (see Matter of Ciccarelli v New York State Div.of Parole, 35 AD3d 1107, 1108 [2006]). To the extent the petitioner relies on People ex rel. Forshey v John (75 AD3d1100 [2010]), that case is distinguishable, since the petitioner in that case, unlike the petitioner inthe instant case, had completed the required term of unrevoked parole following the enactment ofExecutive Law § 259-j (3-a). Covello, J.P., Leventhal, Hall and Sgroi, JJ., concur.