People ex rel. Carter v Smith

People v Smith 2015 NY Slip Op 09343 Decided on December 17, 2015 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: December 17, 2015
520859

[*1]THE PEOPLE OF THE STATE OF NEW YORK ex rel. SHALIEK CARTER, Appellant,

v

BRANDON J. SMITH, as Superintendent of Greene Correctional Facility, Respondent.

Calendar Date: October 27, 2015
Before: Peters, P.J., Lahtinen, Rose and Lynch, JJ.

Shaliek Carter, Coxsackie, appellant pro se.

Eric T. Schneiderman, Attorney General, Albany (Owen Demuth of counsel), for respondent.

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Elliott, J.), entered March 18, 2015 in Greene County, which dismissed petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

Petitioner was sentenced to 3½ years in prison following his 2002 conviction of robbery in the second degree [FN1]. In 2007,

petitioner was sentenced to a prison term of 13 years and five years of postrelease supervision following his conviction of attempted robbery in the first degree. Petitioner commenced this CPLR article 70 proceeding for habeas corpus relief asserting that, because he served three years of an illegally imposed period of postrelease supervision in connection with the 2002 conviction, his due process rights were violated and he is entitled to immediate release. Supreme Court dismissed the petition without a hearing and this appeal ensued.

We affirm. "Entitlement to immediate release from prison, which does not occur until [*2]the expiration of an inmate's sentence, is a prerequisite for habeas corpus relief" (People ex rel. Justice v Racette, 111 AD3d 1041, 1042 [2013], lv denied 22 NY3d 861 [2014] [internal quotation marks and citations omitted]; see People ex rel. Porter v Napoli, 56 AD3d 830, 831 [2008]). Petitioner is currently serving the unexpired term of his 2007 sentence, which is completely unrelated to his 2002 sentence. As such, petitioner would not be entitled to immediate release and, therefore, a writ of habeas corpus cannot be granted (see People ex rel. Vickery v Griffin, 125 AD3d 1018, 1019 [2015], lv denied 25 NY3d 908 [2015]; People ex rel. Justice v Racette, 111 AD3d 1041, 1042 [2013], lv denied 22 NY3d 861 [2014]).

Peters, P.J., Lahtinen, Rose and Lynch, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

Footnotes

Footnote 1: Petitioner was resentenced in 2012 to the same 3½-year prison term but the five-year period of postrelease supervision that was administratively imposed by the Department of Corrections and Community Supervision was removed.