| People ex rel. Howard v Yelich |
| 2011 NY Slip Op 06162 [87 AD3d 772] |
| August 4, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York ex rel. Levi Howard,Appellant, v Bruce S. Yelich, as Superintendent of Bare Hill Correctional Facility, et al.,Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), forrespondents.
Appeal from a judgment of the Supreme Court (Feldstein, J.), entered December 1, 2010 inFranklin County, which denied petitioner's application for a writ of habeas corpus, in aproceeding pursuant to CPLR article 70, without a hearing.
Petitioner was serving a lengthy prison sentence that was to have reached its maximumexpiration date in 2009. After being released to parole supervision in 2007, he absconded andwas eventually arrested in Pennsylvania on an unrelated charge, for which he served a prisonsentence in that state. He was returned to New York in 2010 and pleaded guilty to violating hisparole upon the understanding that he would be held for an additional 12 months. After NewYork officials declined to count the time that petitioner was incarcerated in Pennsylvania towardhis prison sentence, he commenced this habeas corpus proceeding to challenge the legality of hiscontinued detention. Supreme Court dismissed the petition, and petitioner appeals.
Initially, although petitioner has been released to parole supervision during the pendency ofthis appeal, inasmuch as his arguments call into question the calculation of his sentence'smaximum expiration date, we decline to dismiss the appeal as moot. Instead, we will consider[*2]this habeas corpus proceeding as a CPLR article 78proceeding and address the merits (see CPLR 103 [c]; People ex rel. Catts v Haggett, 67AD3d 1315, 1316 [2009]; cf.People ex rel. Schoenwandt v Travis, 23 AD3d 806 [2005]).
When petitioner was declared delinquent on his parole release in July 2007, his New Yorksentence was interrupted and did not resume until his return to an institution under thejurisdiction of the Department of Correctional Services in May 2010 (see Penal Law§ 70.40 [3] [a]). While his Pennsylvania sentence was apparently intended to runconcurrently with the undischarged portion of his New York sentence, it was incumbent upon thePennsylvania authorities to return him to New York to effectuate that intent (see PenalLaw § 70.40 [3]; 42 Pa Cons Stat § 9761 [b]; see also Penal Law §70.20 [3]; § 70.30 [2-a]). Inasmuch as they did not do so, his sentence was properlycalculated.
Peters, J.P., Lahtinen, Malone Jr., McCarthy and Garry, JJ., concur. Ordered that thejudgment is affirmed, without costs.