Opinion
07-01-2016
The PEOPLE of The State of New York ex rel. Phillip JOHNSON, Petitioner–Appellant, v. Patrick M. O'FLYNN, Sheriff of Monroe County, Respondent, New York State Department of Corrections and Community Supervision and New York State Division of Parole, Respondents–Respondents.
Michael Jos. Witmer, Rochester, for Petitioner–Appellant. Eric T. Schneiderman, Attorney General, Albany (Zainab A. Chaudhry of Counsel), for Respondents–Respondents.
Michael Jos. Witmer, Rochester, for Petitioner–Appellant.
Eric T. Schneiderman, Attorney General, Albany (Zainab A. Chaudhry of Counsel), for Respondents–Respondents.
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, DeJOSEPH, AND NEMOYER, JJ.
MEMORANDUM: Petitioner appeals from an order dismissing his petition for a writ of habeas corpus. Although the order was subsumed in a subsequent judgment from which no appeal was taken, we exercise our discretion to treat the notice of appeal as valid and deem the appeal as taken from the judgment (see People ex rel. Cass v. Khahaifa, 89 A.D.3d 1517, 1517–1518, 932 N.Y.S.2d 748 ;
see also CPLR 5520[c] ). Petitioner's contentions in support of his request for habeas corpus relief, however, relate to a finding at a preliminary revocation hearing that probable cause existed to believe that he violated the conditions of his release to postrelease supervision (PRS), and those contentions have been rendered moot by the revocation of his PRS following a final revocation hearing. Thus, we dismiss the appeal insofar as it concerns the finding of probable cause at the preliminary revocation hearing (see People ex rel. Chavis v. McCoy, 236 A.D.2d 892, 892, 653 N.Y.S.2d 752 ; see also People ex rel. Campolito v. Hale, 70 A.D.3d 1474, 1474, 893 N.Y.S.2d 917 ). Petitioner concedes that his further contention concerning the computation of his sentence was not properly raised in the context of this habeas corpus proceeding, and we do not consider it appropriate on this record to grant his request that we exercise our power under CPLR 103(c) to convert this proceeding into a CPLR article 78 proceeding (see People ex rel. Keyes v. Khahaifa, 101 A.D.3d 1665, 1665, 955 N.Y.S.2d 786, lv. denied 20 N.Y.3d 862, 2013 WL 1197116 ; People ex rel. McCullough
v. New York State Div. of Parole, 82 A.D.3d 1640, 1640–1641, 919 N.Y.S.2d 424, lv. denied 17 N.Y.3d 704, 2011 WL 2473116 ).
It is hereby ORDERED that said appeal insofar as it concerns the finding of probable cause at the preliminary revocation hearing is unanimously dismissed and the judgment is affirmed without costs.