SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
November 18, 2011
THE PEOPLE OF THE STATE OF NEW YORK EX REL. ROBERT CASS, PETITIONER-RESPONDENT,
SIBATU KHAHAIFA, SUPERINTENDENT, ORLEANS CORRECTIONAL FACILITY, RESPONDENT-APPELLANT.
Appeal from a judgment of the Supreme Court, Orleans County (James P. Punch, A.J.), entered May 17, 2010 in a habeas corpus proceeding.
People ex rel. Cass v Khahaifa
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 November 18, 2011
PRESENT: FAHEY, J.P., CARNI, SCONIERS, GORSKI, AND MARTOCHE, JJ.
The judgment granted the petition.
It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law without costs and the petition is dismissed.
Memorandum: Respondent appeals from an order granting the petition for a writ of habeas corpus. We note at the outset that the order was subsumed in the final judgment, from which no appeal was taken. Nevertheless, we exercise our discretion to treat the notice of appeal as valid and deem the appeal as taken from the judgment (see Hughes v Nussbaumer, Clarke & Velzy, 140 AD2d 988; see also CPLR 5520 [c]), and we reverse. Petitioner was not entitled to habeas corpus relief because he violated a condition of postrelease supervision, which was properly imposed before petitioner completed the originally imposed sentence of imprisonment (see People v Lingle, 16 NY3d 621, 629-633).
Entered: November 18, 2011
Patricia L. Morgan Clerk of the Court
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