Opinion
02-06-2015
The PEOPLE of the State of New York ex rel. Sherman WALKER, Petitioner–Appellant, v. Ms. DOLCE, Superintendent, New York State Department of Corrections and Community Supervision, Respondent–Respondent.
D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of Counsel), for Petitioner–Appellant. Eric T. Schneiderman, Attorney General, Albany (Allyson B. Levine of Counsel), for Respondent–Respondent.
D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of Counsel), for Petitioner–Appellant.
Eric T. Schneiderman, Attorney General, Albany (Allyson B. Levine of Counsel), for Respondent–Respondent.
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, CARNI, and WHALEN, JJ.
Opinion
MEMORANDUM:We reject the contention of petitioner that Supreme Court erred in dismissing his petition for a writ of habeas corpus. The remedy of habeas corpus is unavailable because petitioner would not be eligible for immediate release from custody in the event that he succeeded on the merits of the proceeding (see People ex rel. Porter v. Napoli, 56 A.D.3d 830, 831, 867 N.Y.S.2d 733 ; see also People ex rel. Hinton v. Graham, 66 A.D.3d 1402, 1402, 885 N.Y.S.2d 663, lv. denied 13 N.Y.3d 934, 895 N.Y.S.2d 310, 922 N.E.2d 899, rearg. denied 14 N.Y.3d 795, 899 N.Y.S.2d 126, 925 N.E.2d 929 ). We note that, although this Court has the power to convert this proceeding into one pursuant to CPLR article 78 (see People ex rel. Brown v. New York State Div. of Parole, 70 N.Y.2d 391, 398, 521 N.Y.S.2d 657, 516 N.E.2d 194 ), we deem such conversion to be inappropriate on the record before us. Finally, contrary to petitioner's contention, petitioner was afforded meaningful representation by the attorney assigned to represent him in connection with the habeas corpus proceeding (see generally People
v. Stultz, 2 N.Y.3d 277, 287, 778 N.Y.S.2d 431, 810 N.E.2d 883, rearg. denied 3 N.Y.3d 702, 785 N.Y.S.2d 29, 818 N.E.2d 671 ; People v. Benevento, 91 N.Y.2d 708, 712, 674 N.Y.S.2d 629, 697 N.E.2d 584 ).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.