Opinion
520859.
12-17-2015
The PEOPLE of the State of New York ex rel. Shaliek CARTER, Appellant, v. Brandon J. SMITH, as Superintendent of Greene Correctional Facility, Respondent.
Shaliek Carter, Coxsackie, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Owen Demuth of counsel), for respondent.
Shaliek Carter, Coxsackie, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany (Owen Demuth of counsel), for respondent.
Opinion
Appeal from a judgment of the Supreme Court (Elliott, J.), entered March 18, 2015 in Greene County, which dismissed petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.
Petitioner was sentenced to 3 ½ years in prison following his 2002 conviction of robbery in the second degree. In 2007, petitioner was sentenced to a prison term of 13 years and five years of postrelease supervision following his conviction of attempted robbery in the first degree. Petitioner commenced this CPLR article 70 proceeding for habeas corpus relief asserting that, because he served three years of an illegally imposed period of postrelease supervision in connection with the 2002 conviction, his due process rights were violated and he is entitled to immediate release. Supreme Court dismissed the petition without a hearing and this appeal ensued.
Petitioner was resentenced in 2012 to the same 3 ½–year prison term but the five-year period of postrelease supervision that was administratively imposed by the Department of Corrections and Community Supervision was removed.
We affirm. “Entitlement to immediate release from prison, which does not occur until the expiration of an inmate's sentence, is a prerequisite for habeas corpus relief” (People ex rel. Justice v. Racette, 111 A.D.3d 1041, 1042, 975 N.Y.S.2d 781 2013, lv. denied 22 N.Y.3d 861, 2014 WL 593181 2014 [internal quotation marks and citations omitted]; see People ex rel. Porter v. Napoli, 56 A.D.3d 830, 831, 867 N.Y.S.2d 733 2008 ). Petitioner is currently serving the unexpired term of his 2007 sentence, which is completely unrelated to his 2002 sentence. As such, petitioner would not be entitled to immediate release and, therefore, a writ of habeas corpus cannot be granted (see 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. Justice v. Racette, 111 A.D.3d 1041, 1042, 975 N.Y.S.2d 781 2013, lv. denied 22 N.Y.3d 861, 2014 WL 593181 2014 ).
ORDERED that the judgment is affirmed, without costs.
PETERS, P.J., LAHTINEN, ROSE and LYNCH, JJ., concur.
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