NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT
March 24, 2009
THE PEOPLE OF THE STATE OF NEW YORK, EX. REL. HERBERT LEWIS, PETITIONER-APPELLANT,
NEW YORK STATE DIVISION OF PAROLE, RESPONDENT-RESPONDENT.
Order, Supreme Court, Bronx County (Ralph Fabrizio, J.), entered June 4, 2007, which denied petitioner's application for a writ of habeas corpus and dismissed the proceeding, unanimously affirmed, without costs.
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.
Tom, J.P., Mazzarelli, Nardelli, Catterson, Moskowitz, JJ.
Although the remedy of habeas corpus is unavailable because petitioner is no longer in custody, this proceeding is not moot because, among other things, it affects parole time credited to petitioner. Therefore, we consider the matter as a CPLR article 78 proceeding (see CPLR 103[c]). Nevertheless, petitioner's arguments are without merit. Regardless of any alleged indications to the contrary, petitioner's 1994 sentence ran consecutively to his previous sentences (see People ex rel. Gill v Greene, __ NY3d __, 2009 NY Slip Op 01067).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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