The People of the State of New York ex rel. Richard M. Langone on behalf of Alberto Muniz, Petitioner,
New York State Department of Correctional Services and New York State Division of Parole, Respondents.
Richard M. Langone, Esq. Langone & Associates, PLLC Attorney for Petitioner.
Jeane L. Strickland-Smith, Esq. New York State Attorney General's Office Attorney for Respondents.
Lawrence H. Ecker, J.
The following papers numbered 1 to 13 were read on petitioner's application for a declaratory judgment and judgment pursuant to CPLR Article 70 and CPLR Article 78 seeking vacatur of a New York State detainer warrant lodged against him in federal custody:
Plaintiff's Notice of Motion/ Affirmation/ Exhibit A-E1-7
Defendant's Notice of Cross-Motion/Affirmation/Exhibits A-D8-13
Upon the foregoing papers, the decision, order, and judgment of the court is as follows:
This proceeding raises an apparent issue of first impression involving petitioner Albert Muniz, a federal prisoner, who is serving both state and federal sentences. Muniz brings this special proceeding pursuant to CPLR Article 70 and Article 78 seeking relief from a New York State detainer warrant lodged against him at the Federal Correctional Institution in Otisville, New York in Orange County where he is currently serving both sentences. He alleges a failure to act on the part of the respondents New York State Department of Correctional Services ("DOCS") and New York State Division of Parole ("Parole") to afford him a parole release hearing regarding his state prison sentence. The novel issue is whether he is entitled to the parole release hearing under these circumstances.
The essential facts are not in dispute. On September 9, 1975, petitioner was sentenced in Supreme Court, New York County to two indeterminate terms of imprisonment of 0 -15 years for manslaughter in the first degree and attempted murder in the second degree, to run concurrently.
On September 10, 1976, petitioner was sentenced in Supreme Court, Kings County to three indeterminate terms of imprisonment of 0 -15, 0-7, and 0-7 for assault in the first degree, assault in the second degree, and possession of a weapon, to run concurrently with each other and consecutively to the 1975 New York County sentences.
On November 5, 1979, the Appellate Division, Second Department reversed the 1976 Kings County conviction on prosecutorial misconduct grounds. People v. Muniz, 72 A.D.2d 754 (2d Dept 1979). He was apparently not retried on this charge.
On September 29, 1981, petitioner was granted parole on the 1975 New York County convictions.
On September 18, 1984, petitioner was sentenced in Supreme Court, New York County to an indeterminate term of 6 years to life imprisonment for criminal sale of a controlled substance in the second degree to ...