| People ex rel. Amato v Perez |
| 2013 NY Slip Op 04650 [107 AD3d 1259] |
| June 20, 2013 |
| Appellate Division, Third Department |
| The People of the State of New York ex rel. VincentAmato, Appellant, v Ada Perez, as Superintendent of Downstate Correctional Facility,Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Frank Brady of counsel), forrespondent.
Appeal from a judgment of the Supreme Court (Lawliss, J.), entered July 24, 2012 inClinton County, which dismissed petitioner's application, in a proceeding pursuant toCPLR article 70, without a hearing.
In 1993, petitioner was convicted of a number of crimes, including robbery in thefirst degree, and was sentenced to an aggregate term of 10 to 20 years in prison. In 2010,he was released to parole supervision, but was thereafter charged with violating theconditions of his parole. He pleaded guilty to one of the violations, his parole wasrevoked and a 12-month time assessment was imposed that would be forgiven if hecompleted a 90-day drug treatment program, typically conducted at the Willard DrugTreatment Campus.
Petitioner was thereafter transferred to Downstate Correctional Facility in DutchessCounty. He commenced this proceeding for a writ of habeas corpus claiming that hisdetention was illegal because he was not transferred to a drug treatment program inaccord with the plea agreement. During the pendency of the proceeding, the Departmentof Corrections and Community Supervision changed petitioner's security classificationdue to the issuance of an arrest warrant against him in Connecticut. Accordingly, theDepartment transferred him to Clinton Correctional Facility in Clinton County, amaximum security prison. After this [*2]proceeding wastransferred to Clinton County, Supreme Court dismissed petitioner's application, withouta hearing, resulting in this appeal.
We affirm. Initially, as petitioner's security status has changed due to the Connecticutarrest warrant, he is now ineligible to participate in the drug treatment program.Moreover, even if petitioner's claim had merit, he would, at most, be afforded theopportunity to withdraw his plea and would not be entitled to immediate release fromprison. Accordingly, habeas corpus relief is unavailable (see People ex rel. Shannon vKhahaifa, 74 AD3d 1867, 1867 [2010], lv dismissed 15 NY3d 868[2010]; People ex rel.Muhammad v Bradt, 68 AD3d 1391, 1392 [2009]; see also People ex rel. Ariola vSears, 53 AD3d 1001, 1002 [2008], lv denied 11 NY3d 710 [2008]).
Peters, P.J., Rose, Spain and Garry, JJ., concur. Ordered that the judgment isaffirmed, without costs.