Opinion
KAH 02-00596.
December 31, 2003.
Appeal from a judgment (denominated order) of Supreme Court, Erie County (Fahey, J.), entered January 16, 2002, which denied the petition for a writ of habeas corpus.
RODNEY ALFORD, PETITIONER-APPELLANT PRO SE.
ELIOT SPITZER, ATTORNEY GENERAL, ALBANY (MARLENE O. TUCZINSKI OF COUNSEL), FOR RESPONDENT-RESPONDENT.
Before: PRESENT: GREEN, J.P., SCUDDER, GORSKI, LAWTON, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the law by dismissing that part of the petition seeking a writ of habeas corpus on the ground that petitioner was denied his right to discretionary parole release and as modified the judgment is affirmed without costs.
Memorandum: Supreme Court properly determined that petitioner is not entitled to habeas corpus relief based on his contention that he was denied his right to discretionary parole release after serving his minimum sentence, but the court should have dismissed the petition to that extent rather than denying it. We therefore modify the judgment accordingly ( see People ex rel. Stevenson v. Beaver, 309 A.D.2d 1171). Petitioner is not entitled to habeas corpus relief on that ground because "[p]arole decisions are discretionary and prisoners have no right to be released prior to the expiration of their sentences" ( People ex rel. Sansalone v. Schriver, 252 A.D.2d 605, 605; see People ex rel. Harris v. New York State Div. of Parole, 306 A.D.2d 938; People ex rel. Daniels v. Beaver, 303 A.D.2d 1025), and thus petitioner would not be entitled to immediate release in any event ( see Stevenson, 309 A.D.2d 1171). We have considered petitioner's remaining contentions and conclude that they lack merit.