Opinion
2014-08-7
The PEOPLE of the State of New York ex rel. Anthony ALBERT, Appellant, v. Eric T. SCHNEIDERMAN, as Attorney General, et al., Respondents.
Anthony Albert, New York City, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Martin A. Hotvet of counsel), for respondents.
Anthony Albert, New York City, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Martin A. Hotvet of counsel), for respondents.
Before: LAHTINEN, J.P., McCARTHY, EGAN JR., LYNCH and CLARK, JJ.
Appeal from a judgment of the Supreme Court (Work, J.), entered October 30, 2013 in Ulster County, which denied petitioner's application, in a proceeding pursuant to CPLR article 70, without a hearing.
Petitioner was convicted of attempted criminal possession of a weapon in the third degree and, in 1997, was sentenced to a prison term of two years to life. Petitioner was released to parole supervision, which subsequently was revoked on multiple occasions. After petitioner was charged with new drug offenses in 2013, his parole again was revoked and a time assessment of one year was imposed. Petitioner then commenced this habeas corpus proceeding, arguing that he was entitled to mandatory termination of his sentence pursuant to Executive Law § 259–j former (3–a). Supreme Court dismissed the petition, and this appeal ensued.
Initially, respondents advise us that petitioner again has been released to parole supervision. Nonetheless, because “the maximum expiration date of his sentence remains affected by the issues presented,” we will not dismiss this matter as moot and will instead consider it as a CPLR article 78 proceeding (People ex rel. Speights v. McKoy, 88 A.D.3d 1039, 1040, 930 N.Y.S.2d 498 [2011]; see People ex rel. Howard v. Yelich, 87 A.D.3d 772, 773, 928 N.Y.S.2d 609 [2011] ). As to the merits, inasmuch as petitioner was not convicted of a qualifying drug felony, he is not entitled to relief under the provisions of Executive Law § 259–j former (3–a) and current Correction Law § 205(4) ( see People ex rel. Williams v. Kirkpatrick, 111 A.D.3d 1327, 1327, 974 N.Y.S.2d 739 [2013] ). Petitioner's remaining contention was not raised before Supreme Court, and, hence, is unpreserved for our review.
ORDERED that the judgment is affirmed, without costs.