People ex rel. White v Smith

2014 NY Slip Op 06128 [120 AD3d 1469]

September 11, 2014

Appellate Division, Third Department

As corrected through Wednesday, October 29, 2014

[*1]

The People of the State of New York ex rel. Curtis White, Appellant, v Brandon J. Smith, asSuperintendent of Greene Correctional Facility, et al.,Respondents.

Curtis White, Coxsackie, appellant pro se.

Eric T. Schneiderman, Attorney General, Albany (Frank Brady of counsel), forrespondents.

Appeal from a judgment of the Supreme Court (Elliott, J.), entered October 17, 2013in Greene County, which dismissed petitioner's application, in a proceeding pursuant toCPLR article 70, without a hearing.

In 1991, petitioner was convicted of rape in the first degree and sentenced to81/3 to 25 years in prison (People v White, 185 AD2d 472 [1992],lv denied 80 NY2d 935 [1992]). He was released to parole supervision inSeptember 2011 and charged with violating his parole in February 2012. At the finalrevocation hearing, petitioner pleaded guilty to two charges of violating hisparole—failing to abstain from alcoholic beverages and failing to keep a logtruthfully detailing his daily events—and a delinquency time assessment of 14months was imposed. Respondents concede that the Board of Parole did not respond topetitioner's administrative appeal within four months and, thus, his administrativeremedies were deemed exhausted. Petitioner commenced this proceeding for a writ ofhabeas corpus, seeking immediate release, challenging the sufficiency of both his pleaallocution and the evidence of his guilt and asserting that he received ineffectiveassistance of counsel in the plea proceeding. Supreme Court dismissed petitioner'sapplication and this appeal ensued.

We affirm. As Supreme Court concluded, petitioner would not be entitled toimmediate [*2]release from prison even if his claims hadmerit; at most, he would be entitled to vacatur of his plea and a new final parolerevocation hearing (see Peopleex rel. Amato v Perez, 107 AD3d 1259, 1259-1260 [2013]; see also People ex rel. D'Adamo vArtus, 85 AD3d 1459, 1459 [2011], lv denied 17 NY3d 714 [2011]).Accordingly, habeas corpus relief is unavailable. Moreover, under the circumstances ofthis case, conversion of this proceeding to a CPLR article 78 proceeding is unwarranted(compare People ex rel. Brown v New York State Div. of Parole, 70 NY2d 391,398 [1987]).

Lahtinen, J.P., McCarthy, Egan Jr., Lynch and Clark, JJ., concur. Ordered that thejudgment is affirmed, without costs.