Opinion
January 14, 1985
Appeal from the Supreme Court, Dutchess County (Nicolai, J.).
Judgment affirmed, without costs or disbursements.
If the petition is treated as instituting an article 78 proceeding to review and set aside the Parole Board's determination to revoke petitioner's parole, the proceeding is barred by the four-month Statute of Limitations (CPLR 217; see Matter of Menechino v. Division of Parole, 32 A.D.2d 761, affd 26 N.Y.2d 837; Matter of Soto v. New York State Bd. of Parole, 107 A.D.2d 693). Although this proceeding would not be time barred if designated a habeas corpus proceeding (see People ex rel. Menechino v. Warden, 27 N.Y.2d 376), the remedy of habeas corpus is not available to this petitioner because he will not be entitled to immediate release as he is now incarcerated due to a subsequent felony conviction, which also served as the basis for one of the parole violation charges lodged against him (see People ex rel. Mendolia v. Superintendent, Green Haven Correctional Facility, 47 N.Y.2d 779; People ex rel. Collier v Superintendent of Green Haven Correctional Facility, 72 A.D.2d 612).
Furthermore, by waiving, on November 3, 1981, his right to a preliminary parole revocation hearing, petitioner effectively waived his right to challenge the Board's alleged failure to afford him a timely preliminary hearing as well as his right to relief in consequence of its failure to do so (see People ex rel. Miller v. Walters, 60 N.Y.2d 899; People ex rel. Hatterson v Walters, 100 A.D.2d 978). Accordingly, the proceeding was properly dismissed. Thompson, J.P., Weinstein, Rubin and Lawrence, JJ., concur.