November 8, 2013
THE PEOPLE OF THE STATE OF NEW YORK EX REL. WILLIE WILLIAMS, PETITIONER-APPELLANT,
ROBERT A. KIRKPATRICK, SUPERINTENDENT, WENDE CORRECTIONAL FACILITY, AND ANDREA W. EVANS, CHAIRWOMAN, NEW YORK STATE DIVISION OF PAROLE, RESPONDENTS-RESPONDENTS
Appeal from a judgment (denominated memorandum and order) of the Supreme Court, Erie County (John L. Michalski, A.J.), dated June 12, 2012 in a proceeding pursuant to CPLR article 78. The judgment denied the petition.
ALAN BIRNHOLZ, EAST AMHERST, FOR PETITIONER-APPELLANT.
ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (OWEN DEMUTH OF COUNSEL), FOR RESPONDENTS-RESPONDENTS.
PRESENT: FAHEY, J.P., PERADOTTO, LINDLEY, SCONIERS, AND WHALEN, JJ.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.
Memorandum: Petitioner commenced this habeas corpus proceeding alleging that he is entitled to immediate release from prison pursuant to Executive Law former § 259-j (3-a), which has since been replaced by Correction Law § 205 (4). According to petitioner, his sentence of 20 years to life should be terminated because, from 1994 to 1997, he had "three years of unrevoked presumptive release or parole" (§ 205 ). We reject that contention. As a threshold matter, we note that section 205 (4) applies only to prisoners serving sentences for qualifying drug felonies, and defendant is serving a sentence for attempted murder in the second degree. In any event, petitioner is not entitled to relief under the statute because he violated parole several times after his three years of unrevoked release and before the effective date of Executive Law § 259-j (3-a) (see Matter of Rosario v New York State Div. of Parole, 84 A.D.3d 1665, 1666; Matter of Murphy v Ewald, 77 A.D.3d 778, 779, lv denied 16 N.Y.3d 701).
To the extent that the petition further alleged that petitioner was deprived of a final revocation hearing when his parole was revoked in 2009 upon his conviction of a new drug felony, we conclude that Supreme Court properly converted the habeas corpus petition to a CPLR article 78 petition and then denied the petition. "Upon petitioner's conviction of a felony committed while under parole supervision, petitioner's parole was revoked by operation of law" (People ex rel. Stevenson v Beaver, 309 A.D.2d 1171, 1172, lv denied 1 N.Y.3d 506). Thus, contrary to petitioner's contention, a parole revocation hearing was not required (see Executive Law § 259-i [d] [iii]; People ex rel. Harris v Sullivan, 74 N.Y.2d 305, 308; People ex rel. Ward v Russi, 219 A.D.2d 862, 862, lv denied 87 N.Y.2d 803).