Opinion
September 30, 1985
Appeal from the Supreme Court, Dutchess County (Colabella, J.).
Judgment affirmed, without costs or disbursements.
A habeas corpus proceeding is generally the appropriate vehicle to review parole revocation proceedings including the issue of whether a parolee has been denied his right to a prompt final parole revocation hearing (see, People v ex rel. Levy v Dalsheim, 66 A.D.2d 827, affd 48 N.Y.2d 1019; People ex rel. Menechino v Warden, 27 N.Y.2d 376, 379; People ex rel. Walker v New York State Bd. of Parole, 98 A.D.2d 33; People ex rel. Kellams v Henderson, 58 A.D.2d 1022; People ex rel. South v Hammock, 80 A.D.2d 947). However, it is also well established "that the remedy of habeas corpus is available only to one who is entitled to immediate release from the custody he is challenging" (People ex rel. Malinowski v Casscles, 53 A.D.2d 954, lv denied 40 N.Y.2d 809; People ex rel. South v Hammock, supra). Since petitioner was convicted pursuant to a judgment rendered September 23, 1983, which serves as an independent basis for his present incarceration, it is clear that habeas corpus relief is not available to petitioner (People ex rel. Mendolia v Superintendent, 47 N.Y.2d 779; People ex rel. South v Hammock, supra). Accordingly, Special Term was correct in denying the writ.
Nor did Special Term err in denying the application of petitioner's counsel, made at the hearing on the writ, to convert the habeas corpus petition to a petition for relief under CPLR article 78. At the time of the habeas corpus hearing, petitioner had already been given a final parole revocation hearing, at which time the issue of the untimeliness of said hearing had been raised, and the Parole Board had reserved decision. Petitioner's remedy (as his counsel at the habeas corpus proceeding conceded) was to await that administrative determination and commence a timely proceeding pursuant to CPLR article 78 (People ex rel. South v Hammock, supra; Matter of Piersma v Henderson, 44 N.Y.2d 982, cert denied sub nom. Henderson v Majors, 439 U.S. 1088; Matter of Smith v Chairman of N.Y. State Bd. of Parole, 44 N.Y.2d 982). Mangano, J.P., Rubin, Lawrence and Eiber, JJ., concur.