People of State of New York ex rel. Rodney Alford v James L. Berbary

People ex rel. Alford v Berbary 2003 NY Slip Op 20115 [2 AD3d 1337] December 31, 2003 Appellate Division, Fourth Department As corrected through Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 25, 2004

The People of State of New York ex rel. Rodney Alford, Appellant,
v
James L. Berbary, as Superintendent of Collins Correctional Facility, Respondent.

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Appeal from a judgment (denominated order) of Supreme Court, Erie County (Fahey, J.), entered January 16, 2002, which denied the petition for a writ of habeas corpus.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously modified on the law by dismissing that part of the petition seeking a writ of habeas corpus on the ground that petitioner was denied his right to discretionary parole release and as modified the judgment is affirmed without costs.

Memorandum: Supreme Court properly determined that petitioner is not entitled to habeas corpus relief based on his contention that he was denied his right to discretionary parole release after serving his minimum sentence, but the court should have dismissed the petition to that extent rather than denying it. We therefore modify the judgment accordingly (see People ex rel. Stevenson v Beaver, 309 AD2d 1171 [2003]). Petitioner is not entitled to habeas corpus relief on that ground because "[p]arole decisions are discretionary and prisoners have no right to be released prior to the expiration of their sentences" (People ex rel. Sansalone v Schriver, 252 AD2d 605, 605 [1998]; see People ex rel. Harris v New York State Div. of Parole, 306 AD2d 938 [2003]; People ex rel. Daniels v Beaver, 303 AD2d 1025 [2003]), and thus petitioner would not be entitled to immediate release in any event (see Stevenson, 309 AD2d 1171 [2003]). We have considered petitioner's remaining contentions and conclude that they lack merit. Present—Green, J.P., Scudder, Gorski, Lawton and Hayes, JJ.