Opinion
(918) CA 00-02471
July 3, 2001.
Appeal from Judgment of Supreme Court, Erie County, Mahoney, J. — CPLR art 78.
Judgment unanimously affirmed without costs.
Before: HAYES, J.P., WISNER, HURLBUTT, KEHOE AND LAWTON, JJ.
Memorandum:
Supreme Court did not err in converting this habeas corpus proceeding into a CPLR article 78 proceeding because petitioner is not entitled to immediate release from custody ( see, People ex rel. Jones v. Russi, 199 A.D.2d 1043, lv denied 83 N.Y.2d 753), and the court then properly dismissed the petition based on the failure of petitioner to exhaust his administrative remedies ( see, Matter of Nelson v. Coughlin, 188 A.D.2d 1071, appeal dismissed 81 N.Y.2d 834; CPLR 7801). We reject petitioner's contention that the retroactive application of 9 NYCRR 8002.6 as amended violates the constitutional prohibition against ex post facto laws ( see, People ex rel. Santoro v. Hollins, 273 A.D.2d 829). We have considered petitioner's remaining contention and conclude that it lacks merit.