People ex rel. Shannon v Khahaifa

People ex rel. Shannon v Khahaifa 2010 NY Slip Op 05201 [74 AD3d 1867] June 11, 2010 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 25, 2010

The People of the State of New York ex rel. Archie Shannon, Appellant, v Sibatu Khahaifa, Superintendent, Orleans Correctional Facility, et al., Respondents.

—[*1] D.J. & J.A. Cirando, Esqs., Syracuse (Bradley E. Keem of counsel), for petitioner-appellant.

Andrew M. Cuomo, Attorney General, Albany (Marlene O. Tuczinski of counsel), for respondents-respondents.

Appeal from a judgment (denominated order) of the Supreme Court, Orleans County (James P. Punch, A.J.), entered August 13, 2008. The judgment denied the petition for a writ of habeas corpus.

It is hereby ordered that the judgment so appealed from is unanimously affirmed without costs.

Memorandum: Petitioner commenced this proceeding seeking a writ of habeas corpus on the grounds that, inter alia, the determination that he violated a condition of his parole was arbitrary and capricious, and the time assessment for the violation was excessive. We conclude that Supreme Court properly denied the petition.

Contrary to the contention of petitioner, the evidence adduced at the final parole revocation hearing "was sufficient to prove by a preponderance of the evidence that [he] violated a condition of parole" (People ex rel. Peters v Walker, 262 AD2d 1025 [1999], lv denied 93 NY2d 819 [1999]). "While petitioner also seeks to challenge the length of his time assessment, habeas corpus relief is not appropriate because, even if his contention[ ] ha[s] merit, he would not be entitled to immediate release from prison" (People ex rel. Muhammad v Bradt, 68 AD3d 1391, 1392 [2009]; see People ex rel. Leggett v Leonardo, 274 AD2d 699 [2000]). For the same reason, we conclude that habeas corpus relief is not appropriate based on the contention of petitioner that he was denied effective assistance of counsel at the final parole revocation hearing (see People ex rel. Santoro v Hollins, 273 AD2d 829 [2000]; People ex rel. Kinzer v Williams, 256 AD2d 1240 [1998]; see generally People ex rel. Douglas v Vincent, 50 NY2d 901, 903 [1980]). "Although this Court has the power to convert a habeas corpus proceeding into a CPLR article 78 proceeding . . . , we decline to do so because we do not consider it appropriate on this [*2]record" (People ex rel. Brown v McCoy, 266 AD2d 805 [1999], lv denied 94 NY2d 760 [2000]). Present—Smith, J.P., Lindley, Sconiers, Pine and Gorski, JJ.