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People ex rel Dudley v. Unger

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


December 31, 2008

THE PEOPLE OF THE STATE OF NEW YORK EX REL. FRANK DUDLEY, PETITIONER-APPELLANT,
v.
DAVID UNGER, SUPERINTENDENT, ORLEANS CORRECTIONAL FACILITY, RESPONDENT-RESPONDENT.

Appeal from a judgment (denominated order) of the Supreme Court, Orleans County (James P. Punch, A.J.), entered May 21, 2007 in a habeas corpus proceeding. The judgment dismissed the petition.

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.

PRESENT: MARTOCHE, J.P., SMITH, CENTRA, GREEN, AND PINE, JJ.

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 ground that he is entitled to mandatory release to parole supervision pursuant to Executive Law § 259-h. We reject petitioner's contention that Supreme Court erred in dismissing the petition. That statute provides only that petitioner would "become eligible for release on parole after service of a minimum period of imprisonment of twenty years" (emphasis added). Thus, habeas corpus relief does not lie because petitioner is not entitled to immediate release to parole supervision pursuant to Executive Law § 259-h (see People ex rel. Gloss v Costello, 309 AD2d 1160, lv denied 1 NY3d 504; People ex rel. Beam v Hodges, 286 AD2d 936, 937).

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