People ex rel. Green v Annucci

People ex rel. Green v Annucci 2015 NY Slip Op 08589 Decided on November 20, 2015 Appellate Division, Fourth 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 on November 20, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND DEJOSEPH, JJ.
1231 KAH 14-01747

[*1]THE PEOPLE OF THE STATE OF NEW YORK EX REL. VALAVE GREEN, PETITIONER-APPELLANT,

v

ANTHONY ANNUCCI, ACTING COMMISSIONER, NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, RESPONDENT-RESPONDENT.

WYOMING COUNTY-ATTICA LEGAL AID BUREAU, WARSAW (LEAH R. NOWOTARSKI OF COUNSEL), FOR PETITIONER-APPELLANT.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (LAURA ETLINGER OF COUNSEL), FOR RESPONDENT-RESPONDENT.

Appeal from a judgment of the Supreme Court, Wyoming County (Michael M. Mohun, A.J.), entered June 24, 2014 in a habeas corpus proceeding. The judgment dismissed the petition.

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

Memorandum: Petitioner, an inmate in state prison, commenced this proceeding seeking a writ of habeas corpus, alleging that he was denied due process because, inter alia, respondent failed to afford him a preliminary or final parole revocation hearing. We conclude that Supreme Court properly dismissed the petition. As respondent points out, petitioner was not entitled to a revocation hearing because a parole warrant was not issued against him (see Executive Law § 259-i [3] [a] [i]). In any event, petitioner was convicted of two felonies he committed while released on parole, and he was sentenced to indeterminate terms of imprisonment on those new felonies, whereupon his parole was revoked by operation of law pursuant to Executive Law § 259-i (3) (d) (iii) (see People ex rel. Daniels v Beaver, 303 AD2d 1025, 1025; Matter of Adams v New York State Div. of Parole, 278 AD2d 621, 621). Because petitioner's parole was revoked by operation of law, "a parole revocation hearing was not required" (People ex rel. Williams v Kirkpatrick, 111 AD3d 1327, 1327-1328; see People ex rel. Stevenson v Beaver, 309 AD2d 1171, 1172, lv denied 1 NY3d 506).

Entered: November 20, 2015

Frances E. Cafarell

Clerk of the Court