| Matter of Rosario v New York State Div. of Parole |
| 2011 NY Slip Op 04339 [84 AD3d 1665] |
| May 26, 2011 |
| Appellate Division, Third Department |
| In the Matter of Jose Rosario, Appellant, v New York StateDivision of Parole et al., Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Owen Demuth of counsel), forrespondents.
Mercure, J.P. Appeal from a judgment of the Supreme Court (Sackett, J.), entered August 30,2010 in Albany County, which dismissed petitioner's application, in a proceeding pursuant toCPLR article 78, to, among other things, compel respondent Division of Parole to nullify a parolewarrant lodged against him.
In 1989, petitioner was convicted of criminal possession of a controlled substance in thesecond degree and sentenced to a prison term of five years to life. Petitioner was thereafterreleased to parole in May 1994. In August 1996, petitioner was arrested in New York for variousdrug crimes. Thereafter, petitioner absconded and was declared delinquent as of November 25,1997, and a parole violation warrant was issued in January 1998.
In November 1999, petitioner was arrested in Connecticut and thereafter convicted of twocrimes, resulting in prison sentences of nine years and 5 to 18 years to be served concurrently.When respondent Division of Parole became aware of petitioner's Connecticut incarceration, itlodged a detainer with that state pursuant to Executive Law § 259-i (3) (a) (iii) based uponpetitioner's parole violation. Then, in December 2000, having been convicted of criminalpossession of a controlled substance in the second degree resulting from his 1996 arrest,petitioner was briefly returned to Supreme Court, Bronx County, where he was sentenced to aprison term of six years to life.[*2]
In October 2006, an employee of the Divisionerroneously informed Connecticut authorities that petitioner had been discharged from his NewYork sentence. Respondent Noel Penalver then sent a corrective communication to Connecticutauthorities, purporting to inform them that the detainer was still in effect, but setting forthinaccurate information as to the specifics of the warrant. Finally, in July 2010, the Department ofCorrectional Services sent an accurate detainer warrant to Connecticut officials with respect topetitioner's December 2000 prison sentence. Thereafter, petitioner commenced this CPLR article78 proceeding in the nature of mandamus, seeking to nullify the 1998 parole warrant lodgedagainst him and to rescind the detainer lodged with Connecticut based upon thatwarrant.[FN*]Supreme Court dismissed the petition and petitioner now appeals.
We affirm. Initially we note that petitioner's challenge to the detainer lodged withConnecticut based upon his 1998 parole violation warrant has been effectively renderedacademic by the subsequent July 2010 detainer, which will require petitioner's return to NewYork at the conclusion of his Connecticut sentence. Furthermore, petitioner's challenge to theJanuary 1998 warrant itself and the mistaken communications regarding it are unavailing. Hiscontention that he was entitled to a parole revocation hearing is without merit because his parolewas revoked by operation of law upon his conviction of criminal possession of a controlledsubstance in the second degree (see Executive Law § 259-i [3] [d] [iii]; Matter of Santiago v Alexander, 80AD3d 1105, 1106 [2011]; Matter ofMeade v Boucaud, 67 AD3d 1263, 1264 [2009]). Petitioner also asserts that theuninterrupted period of parole he served between May 1994 and November 1997 terminated his1989 sentence pursuant to Executive Law § 259-j (3-a). That statute, however, does notprovide retroactive relief where parole has been revoked prior to the enactment of the statute (see People ex rel. Murphy v Ewald, 77AD3d 778, 778-779 [2010], lv denied 16 NY3d 701 [2011]; Matter of Ciccarelli v New York State Div.of Parole, 35 AD3d 1107, 1107-1108 [2006], lv denied 8 NY3d 806 [2007]).
We have examined petitioner's remaining claims and find them to be unavailing.
Spain, Kavanagh, Stein and Garry, JJ., concur. Ordered that the judgment is affirmed,without costs.
Footnote *: In an order entered June 16,2010, Supreme Court dismissed the petition against the Division for petitioner's failure to obtainjurisdiction based upon improper service.