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People ex rel Pierre v. Cunningham

State of New York Supreme Court, Appellate Division Third Judicial Department


May 13, 2010

THE PEOPLE OF THE STATE OF NEW YORK EX REL. FRANTZ ST. PIERRE, APPELLANT,
v.
RAYMOND CUNNINGHAM, AS SUPERINTENDENT OF WOODBOURNE CORRECTIONAL FACILITY, ET AL., RESPONDENTS.

MEMORANDUM AND ORDER

Calendar Date: April 7, 2010

Before: Cardona, P.J., Lahtinen, Malone Jr., Kavanagh and Egan Jr., JJ.

Appeal from a judgment of the Supreme Court (LaBuda, J.), entered July 23, 2009 in Sullivan County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 70, without a hearing.

In 1982, petitioner was convicted of two counts of murder in the second degree and two counts of robbery in the first degree. He was sentenced to an aggregate term of 25 years to life in prison. In December 2008, he appeared before the Board of Parole requesting parole release. Following a hearing, the Board denied his request. Petitioner brought the instant application pursuant to CPLR article 70 for a writ of habeas corpus. Supreme Court dismissed petitioner's application without a hearing and petitioner appeals.

As in People ex rel. Germenis v Cunningham (___ AD3d ___ [decided herewith]), petitioner here claims that the denial of his request for parole release constituted a breach of an implied agreement based upon the provisions of form 3617 of the Department of Correctional Services, entitled "Program Refusal Notification." For the reasons set forth in our decision in People ex rel. Germenis v Cunningham (supra), we find petitioner's claim to be without merit. Therefore, Supreme Court properly dismissed petitioner's application.

Cardona, P.J., Lahtinen, Malone Jr., Kavanagh and Egan Jr., JJ., concur.

ORDERED that the judgment is affirmed, without costs.

20100513

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