Opinion
KAH 01-01055
June 14, 2002.
Appeal from a judgment (denominated order) of Supreme Court, Livingston County (Cicoria, J.), entered January 18, 2001, which, inter alia, denied the petition for a writ of habeas corpus.
ZIMMERMAN TYO, SHORTSVILLE (JOHN E. TYO OF COUNSEL), FOR PETITIONER-APPELLANT.
PRESENT: GREEN, J.P., HAYES, HURLBUTT, BURNS, AND GORSKI, 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 commenced this proceeding pursuant to CPLR article 70 seeking a writ of habeas corpus, alleging that the time allowance committee (TAC) erred in its recommendation, and the Commissioner of the Department of Correctional Services (Commissioner) erred in his determination to withhold good time. Supreme Court denied the petition for a writ of habeas corpus, converted the proceeding to one pursuant to CPLR article 78 and provided that, in order to proceed with the CPLR article 78 proceeding, petitioner must serve respondent with the petition. We reject the contention of petitioner that the court erred in denying his petition for a writ of habeas corpus. "[H]abeas corpus relief does not lie where there are other procedures available for review of the challenged error" ( People ex rel. Quartararo v. Demskie, 238 A.D.2d 792, 793, lv denied 90 N.Y.2d 802; see also People ex rel. Davis v. Arnette, 57 A.D.2d 562, 562, affd 44 N.Y.2d 877; People ex rel. DeFlumer v. Strack, 212 A.D.2d 555, 555, lv dismissed 85 N.Y.2d 966). Here, petitioner's continued confinement is not rendered unlawful by TAC's recommendation and the Commissioner's determination to withhold good time, and thus habeas corpus relief is inappropriate ( see Matter of Doolen v. Goord, 277 A.D.2d 624, 624-625; People ex rel. Hawkins v. Scully, 151 A.D.2d 527, 528; People ex rel. Miranda v. Kuhlmann, 127 A.D.2d 924, 925, lv denied 69 N.Y.2d 612). Petitioner's contentions are properly the subject of a proceeding pursuant to CPLR article 78 ( see e.g. Matter of Merrill v. Goord, 278 A.D.2d 603; Matter of Pfeifer v. Goord, 272 A.D.2d 886; Matter of Coleman v. Boyle, 270 A.D.2d 739, lv denied 95 N.Y.2d 758).