Opinion
KAH 02-00609
May 2, 2003.
Appeal from a judgment (denominated order) of Supreme Court, Erie County (Fahey, J.), entered January 24, 2002, which dismissed the petition.
ALAN BIRNHOLZ, AMHERST, FOR PETITIONER-APPELLANT.
ELIOT SPITZER, ATTORNEY GENERAL, ALBANY (MARLENE O. TUCZINSKI OF COUNSEL), FOR RESPONDENTS-RESPONDENTS.
PRESENT: GREEN, J.P., HURLBUTT, SCUDDER, BURNS, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum:
Petitioner filed a petition seeking a writ of habeas corpus, alleging, inter alia, that the New York State Department of Correctional Services erred in computing his release date. Supreme Court properly converted the proceeding to one pursuant to CPLR article 78 and properly dismissed the petition as lacking in merit. Petitioner contends that he is entitled to a hearing with respect to his correct conditional release date. Petitioner, however, has failed to demonstrate the existence of a factual issue that would warrant a hearing ( cf. Matter of Birden v. Department of Correctional Servs., 134 A.D.2d 843, 843-844).