People ex rel. D'Adamo v Artus

2011 NY Slip Op 05379 [85 AD3d 1459]

June 23, 2011

Appellate Division, Third Department

As corrected through Wednesday, August 10, 2011

The People of the State of New York ex rel. Paul J. D'Adamo,Appellant, v Dale Artus, as Superintendent of Clinton Correctional Facility, et al.,Respondents.

—[*1]Paul J. D'Adamo, Rome, appellant pro se.

Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Treasure of counsel), forrespondents.

Appeal from a judgment of the Supreme Court (Richards, J.), entered July 12, 2010 inClinton County, which denied petitioner's application for a writ of habeas corpus, in a proceedingpursuant to CPLR article 70, without a hearing.

In 1998, petitioner was convicted of the crimes of attempted rape in the first degree and rapein the second degree and was sentenced, respectively, to concurrent terms of 7½ to 15 yearsand 21/3 to 7 years in prison. In 2008, he was released to parole supervision. In2009, he was charged with violating certain conditions of his parole, including a conditionprohibiting him from possessing photographs of minors without his parole officer's permission.After petitioner pleaded guilty to this charge at a final parole revocation hearing, his parole wasrevoked and he was returned to the custody of the Department of Correctional Services.Petitioner took an administrative appeal and, when he did not receive a timely response, hebrought the instant CPLR article 70 proceeding seeking a writ of habeas corpus. Supreme Courtdenied the petition without a hearing, resulting in this appeal.

Petitioner contends that his due process rights were violated and that he was denied a fair andimpartial parole hearing because he was not given an opportunity at the hearing to plead guiltywith explanation to the parole violation. This claim is belied by the transcript of the final [*2]parole revocation hearing which clearly reveals that petitioner wasgiven the option of pleading guilty with explanation. In any event, even if the claim had merit, itwould not entitle petitioner to immediate release from prison and, hence, habeas corpus relief isunavailable (see People ex rel. Lopez vPeople, 79 AD3d 1555, 1556 [2010]; People ex rel. Ariola v Sears, 53 AD3d 1001, 1002 [2008], lvdenied 11 NY3d 710 [2008]). Accordingly, Supreme Court properly denied the petition.

Mercure, J.P., Spain, Lahtinen, Kavanagh and Garry, JJ., concur. Ordered that the judgmentis affirmed, without costs.