| People ex rel. Speights v McKoy |
| 2011 NY Slip Op 06962 [88 AD3d 1039] |
| October 6, 2011 |
| Appellate Division, Third Department |
| The People of the State of New York ex rel. Anthony Speights,Appellant, v Jeff McKoy, as Superintendent of Greene Correctional Facility,Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Frank Brady of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the Supreme Court (Teresi, J.), entered October 18,2010 in Greene County, which denied petitioner's application for a writ of habeas corpus, in aproceeding pursuant to CPLR article 70, without a hearing.
Petitioner was convicted of criminal possession of a controlled substance in the seconddegree, a class A-II felony, and was sentenced to a prison term of three years to life in 1991(see Penal Law § 220.18). He was released to parole supervision, which has sincebeen revoked on multiple occasions. Most recently, he committed an armed robbery inPennsylvania, prompting the Division of Parole to lodge a detainer warrant. Petitioner wasreturned to New York in 2010, after which his parole was revoked and a time assessment of 10months imposed. He then commenced this habeas corpus proceeding, arguing that his sentenceterminated given a period from 1994 to 2000 when he enjoyed uninterrupted parole release.Supreme Court dismissed the petition, and this appeal ensued.
Preliminarily, petitioner has again been released to parole supervision, but this proceeding isnot moot given that the maximum expiration date of his sentence remains affected [*2]by the issues presented (see People ex rel. Forshey v John, 75 AD3d 1100, 1101 [2010]; People ex rel. Catts v Haggett, 67AD3d 1315, 1316 [2009]). We will accordingly consider this matter as a CPLR article 78proceeding (see CPLR 103 [c]; People ex rel. Catts v Haggett, 67 AD3d at 1316),and now affirm.
Executive Law former § 259-j (3-a) directed the Division to "grant termination ofsentence after three years of unrevoked presumptive release or parole to a person serving anindeterminate sentence for a class A felony offense defined in" Penal Law article 220.[FN*] As petitioner's lengthy period of parole release was revoked prior to the statute's 2005enactment, however, the statute's provisions are inapplicable to him (see Matter of Rosario v New York StateDiv. of Parole, 84 AD3d 1665, 1666 [2011]; Matter of Ciccarelli v New York State Div. of Parole, 35 AD3d1107, 1108 [2006], lv denied 8 NY3d 806 [2007]). Petitioner's argument that 2008amendments to the statute extended its reach to periods of parole release revoked prior to 2005 iswithout merit (see People ex rel.Murphy v Ewald, 77 AD3d 778, 779 [2010], lv denied 16 NY3d 701 [2011]).
Peters, J.P., Spain, Stein and Egan Jr., JJ., concur. Ordered that the judgment is affirmed,without costs.
Footnote *: Executive Law former §259-j (3-a) was recently replaced by Correction Law § 205 (4) (see L 2011, ch 62,part C, subpart A, §§ 32, 38-g, 49).