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People ex rel D'Adamo v. Artus

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


April 23, 2009

THE PEOPLE OF THE STATE OF NEW YORK EX REL. PAUL J. D'ADAMO, APPELLANT,
v.
DALE ARTUS, AS SUPERINTENDENT OF CLINTON CORRECTIONAL FACILITY, RESPONDENT.

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.

Calendar Date: March 2, 2009

Before: Cardona, P.J., Spain, Rose, Malone Jr. and Kavanagh, JJ.

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Feldstein, J.), entered September 18, 2008 in Clinton County, which denied petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

Petitioner commenced this CPLR article 70 proceeding seeking a writ of habeas corpus, contending that he is being illegally held due to the Division of Parole's failure to assist with and/or approve housing necessary to facilitate his conditional release. Supreme Court refused to issue the writ and denied petitioner's application without a hearing. Petitioner now appeals.

We affirm. Entitlement to immediate release from prison, which does not occur until the expiration of an inmate's sentence, is a prerequisite for habeas corpus relief (see People ex rel. Porter v Napoli, 56 AD3d 830, 831 [2008]). Because petitioner is not entitled to any such immediate release in this case, Supreme Court properly denied petitioner's application (see People ex rel. Land v State of New York, 54 AD3d 1113 [2008]; People ex rel. Sansalone v Schriver, 252 AD2d 605 [1998]).

Cardona, P.J., Spain, Rose, Malone Jr. and Kavanagh, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

20090423

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