Opinion
September 21, 1984
Appeal from the Supreme Court, Wyoming County, Newman, J.
Present — Hancock, Jr., J.P., Callahan, Denman, Boomer and O'Donnell, JJ.
Judgment unanimously affirmed. Memorandum: Petitioner appeals from a judgment dismissing his habeas corpus proceeding in which he claims respondents have erroneously computed the date when he should be eligible for consideration for reparole. Habeas corpus is not the proper vehicle for this action because even if the relief requested (i.e., earlier consideration for reparole) were granted, relator would not necessarily be entitled to immediate discharge (see People ex rel. Washington v La Vallee, 34 A.D.2d 603; 6 Zett, N Y Crim Prac, par 51.4 [1], [3]). Accordingly, we treat this matter as a CPLR article 78 proceeding (see People ex rel. Miranda v Henderson, 54 A.D.2d 611). We agree with Special Term that the proper application of the Parole Board's decision is that the 18-month period before petitioner could be considered for reparole began to run when his unrelated one-year definite sentence was served and he was being held on the parole violation warrant only. We also agree that the Parole Board properly exercised its discretion in fixing the date for reconsideration (see Executive Law, § 259-i, subd. 3, par [f], cl [x]; People ex rel. Matthews v New York State Div. of Parole, 58 N.Y.2d 196, 205). Moreover, respondents have conceded in their brief that petitioner is entitled to consideration for reparole in July, 1984 and thus the proceeding may be moot as of the date of this decision.