People ex rel. Walker v Dolce

People v Dolce 2015 NY Slip Op 01014 Decided on February 6, 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 February 6, 2015 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, CARNI, AND WHALEN, JJ.
56 KAH 13-01517

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

v

MS. DOLCE, SUPERINTENDENT, NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, RESPONDENT-RESPONDENT.

Appeal from a judgment (denominated order) of the Supreme Court, Orleans County (James P. Punch, A.J.), entered May 28, 2013 in a habeas corpus proceeding. The judgment dismissed the petition.

D.J. & J.A. CIRANDO, ESQS., SYRACUSE (BRADLEY E. KEEM OF COUNSEL), FOR PETITIONER-APPELLANT.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (ALLYSON B. LEVINE OF COUNSEL), FOR RESPONDENT-RESPONDENT.

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

Memorandum: We reject the contention of petitioner that Supreme Court erred in dismissing his petition for a writ of habeas corpus. The remedy of habeas corpus is unavailable because petitioner would not be eligible for immediate release from custody in the event that he succeeded on the merits of the proceeding (see People ex rel. Porter v Napoli, 56 AD3d 830, 831; see also People ex rel. Hinton v Graham, 66 AD3d 1402, 1402, lv denied 13 NY3d 934, rearg denied 14 NY3d 795). We note that, although this Court has the power to convert this proceeding into one pursuant to CPLR article 78 (see People ex rel. Brown v New York State Div. of Parole, 70 NY2d 391, 398), we deem such conversion to be inappropriate on the record before us. Finally, contrary to petitioner's contention, petitioner was afforded meaningful representation by the attorney assigned to represent him in connection with the habeas corpus proceeding (see generally People v Stultz, 2 NY3d 277, 287, rearg denied 3 NY3d 702; People v Benevento, 91 NY2d 708, 712).

Entered: February 6, 2015

Frances E. Cafarell

Clerk of the Court