Opinion
05-18-2017
The PEOPLE of the State of New York ex rel. Edwin RODRIGUEZ, Appellant, v. Christopher MILLER, as Superintendent of Great Meadows Correctional Facility, Respondent.
Edwin Rodriguez, Comstock, for appellant.
Edwin Rodriguez, Comstock, for appellant.
Appeal from a judgment of the Supreme Court (McKeighan, J.), entered April 15, 2016 in Washington County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 70, without a hearing.
Petitioner is currently serving two concurrent five-year prison terms based on two convictions of robbery in the first degree (People v. Rodriguez, 144 A.D.3d 498, 40 N.Y.S.3d 429 [2016], lv. denied 28 N.Y.3d 1188, 52 N.Y.S.3d 714, 75 N.E.3d 106 [2017] ). Petitioner commenced this CPLR article 70 proceeding for a writ of habeas corpus claiming that he should be transferred to a Comprehensive Alcohol and Substance Abuse Treatment program and that he should not be housed in a maximum security facility (see generally Penal Law § 60.04[6] ; 7 NYCRR 1950.2 ). Supreme Court dismissed the petition, and petitioner now appeals.
Respondent has submitted a letter indicating that it was not served and did not appear in Supreme Court.
Even if the issues raised by petitioner in his petition were substantiated and determined to have merit, he would not be entitled to immediate release from prison and, therefore, a writ of habeas corpus could not be granted (see People ex rel. Kaplan v. Commissioner of Correction of City of N.Y., 60 N.Y.2d 648, 649, 467 N.Y.S.2d 566, 454 N.E.2d 1309 [1983] ; People ex rel. Vickery v. Griffin, 125 A.D.3d 1018, 1019, 999 N.Y.S.2d 765 [2015], lv. denied 25 N.Y.3d 908, 2015 WL 2237595 [2015] ; People ex rel. White v. Smith, 120 A.D.3d 1469, 1470, 991 N.Y.S.2d 912 [2014] ). Accordingly, Supreme Court properly dismissed the petition (see CPLR 7003 [a] ).
ORDERED that the judgment is affirmed, without costs.
PETERS, P.J., McCARTHY, CLARK, MULVEY and AARONS, JJ., concur.