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Goldberg v. Warden

Appellate Division of the Supreme Court of New York, First Department
Nov 13, 2007
45 A.D.3d 356 (N.Y. App. Div. 2007)

Opinion

No. 1972, 2679/05.

November 13, 2007.

Order, Supreme Court, Bronx County (Thomas Farber, J.), entered February 10, 2006, which denied petitioner's application for a writ of habeas corpus and dismissed the proceeding, unanimously affirmed, without costs.

Steven Banks, The Legal Aid Society, New York (Jonathan Garelick of counsel), for appellant.

Andrew M. Cuomo, Attorney General, New York (Justin R. Long of counsel), for respondent.

Before: Tom, J.P., Friedman, Gonzalez, Sweeny and Kavanagh, JJ.


As petitioner is no longer in the custody of respondent Warden and could not be immediately released, the remedy of habeas corpus is unavailable ( see People ex rel. Brown v New York State Div. of Parole, 70 NY2d 391, 398). Nevertheless, this proceeding is not moot because, inter alia, it affects parole time credited to petitioner. Therefore, we consider the matter as a proceeding pursuant to CPLR article 78 ( see CPLR 103 [c]).

The petition was properly denied on the ground that the preliminary parole revocation hearing was timely scheduled for November 28, 2005, and was adjourned for the legitimate reason that petitioner was confined for medical reasons ( see People ex rel. Moore v Warden of Rikers Is. Correctional Facility, 36 AD3d 494). Respondent Division of Parole also acted "energetically and scrupulously" in rescheduling the hearing for December 5, 2005, when it learned of petitioner's release from that confinement ( see People ex rel. Burley v Warden, N.Y. City House of Detention at Riker's Is., 70 AD2d 518, 519, lv denied 48 NY2d 602), and petitioner has not cited any prejudice from the short delay.


Summaries of

Goldberg v. Warden

Appellate Division of the Supreme Court of New York, First Department
Nov 13, 2007
45 A.D.3d 356 (N.Y. App. Div. 2007)
Case details for

Goldberg v. Warden

Case Details

Full title:THE PEOPLE OF THE STATE OF NEW YORK ex rel. HARRY GOLDBERG, Appellant, v…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Nov 13, 2007

Citations

45 A.D.3d 356 (N.Y. App. Div. 2007)
2007 N.Y. Slip Op. 8756
846 N.Y.S.2d 15