Opinion
Submitted April 17, 2000.
June 12, 2000.
In a proceeding pursuant to CPLR article 78 to review the issuance of a parole violation warrant No. 302108 lodged against the petitioner and to restore him to parole, the petitioner appeals from a judgment of the Supreme Court, Orange County (Peter C. Patsalos, J.), dated September 29, 1999, which denied the petition and dismissed the proceeding.
Tony Windley, Otisville, N.Y., appellant pro se.
Before: FRED T. SANTUCCI, J.P., MYRIAM J. ALTMAN, GABRIEL M. KRAUSMAN, SANDRA J. FEUERSTEIN, JJ.
DECISION ORDER
ORDERED that the judgment is reversed, on the law, without costs or disbursements, the petition is granted, parole violation warrant No. 302108 is vacated, and the petitioner's parole status is reinstated.
The Supreme Court erred in determining that the exemption to the final parole revocation hearing requirement in Executive Law § 259-i[d][iii] applied to the petitioner who, while on parole, was convicted of a Federal crime committed in New York and was imprisoned in a Federal correctional facility located in New York (see, People ex rel. Harris v. Sullivan, 74 N.Y.2d 305, 311).
Accordingly, the petitioner was entitled to a final parole revocation hearing within the statutory 90-day period, which commenced running from the time that the warrant was lodged as a detainer at the Federal correctional facility (see, e.g., People ex rel. Walsh v. Vincent, 40 N.Y.2d 1049, 1050; People ex rel. Jackson v. New York State Div. of Parole, 211 A.D.2d 585; Matter of Higgins v. New York State Div. of Parole, 72 A.D.2d 583). As no such hearing was held, the petitioner is entitled to the relief he seeks (see, People ex rel. Levy v. Dalsheim, 66 A.D.2d 827, affd 48 N.Y.2d 1019).
In view of this determination, we do not address the petitioner's remaining contention.