The People of the State of New York ex rel. Gary G. Goad, Appellant,
Raymond Coveny, as Superintendent of Elmira Correctional Facility, et al., Respondents.
Calendar Date: November 18, 2019
G. Goad, Dannemora, appellant pro se.
Letitia James, Attorney General, Albany (Frank Brady of
counsel), for respondents.
Before: Garry, P.J., Lynch, Mulvey, Aarons and Colangelo, JJ.
from a judgment of the Supreme Court (Rich Jr., J.), entered
March 28, 2019 in Chemung County, which denied
petitioner's application for a writ of habeas corpus, in
a proceeding pursuant to CPLR article 70, without a hearing.
2000, petitioner was convicted of multiple crimes and was
sentenced to an aggregate prison term of 15 years followed by
five years of postrelease supervision. He was subsequently
released from prison and his parole supervision was
transferred to Virginia. On August 6, 2015, he was arrested
in Virginia for crimes allegedly committed between March 2,
2015 and March 6, 2015. Immediately following his arrest, he
was detained in a Virginia jail and, on September 3, 2015, a
New York parole violation warrant was lodged against him.
Petitioner was convicted of the crimes and remained
incarcerated in Virginia until July 6, 2018 when he was
extradited to New York.
final parole revocation hearing that was held on July 26,
2018, petitioner admitted to violating his parole. As part of
the negotiated disposition, the Administrative Law Judge
(hereinafter ALJ) agreed to impose a 24-month hold and change
petitioner's delinquency date to June 2, 2015, instead of
March 2, 2015 (the date of the earliest Virginia crime),
effectively giving him three months credit toward time served
on postrelease supervision. In addition, the ALJ indicated
that the 24-month hold would commence on July 6, 2018. The
ALJ further noted that because the 24-month hold must begin
on the date that the parole violation warrant was lodged
(see 9 NYCRR 8002.6 [b] ), which was September 3,
2015, 34 months would be added so that the 24-month hold
would begin on July 6, 2018, the date that petitioner became
available for extradition to New York, resulting in a total
delinquent time assessment of 58 months. Petitioner accepted
these terms as part of his admission to the parole violation.
petitioner commenced this proceeding pursuant to CPLR article
70 seeking a writ of habeas corpus. His petition challenged
the lack of a timely preliminary parole revocation hearing
and the imposition of the 58-month delinquent time
assessment. Respondents opposed petitioner's application,
and Supreme Court denied it without a hearing. Petitioner
petitioner contends that he was not afforded a preliminary
parole revocation hearing within 15 days of September 3,
2015, the date that the parole revocation warrant was lodged
against him in Virginia. Executive Law § 259-i (3) (c)
(i) provides that an alleged parole violator is entitled to a
preliminary parole revocation hearing within 15 days after a
parole violation warrant has been executed (see People ex
rel. Matthews v New York State Div. of Parole, 95 N.Y.2d
640, 643 ; People v Singh, 169 A.D.3d 831, 832
). However, where the alleged violator is detained in
another state, the violation warrant is not deemed executed
and the 15-day period is not triggered until the alleged
violator has completed his or her out-of-state sentence and
is available for extradition (see Executive Law
§ 259-i  [a] [iii]; see also People ex rel.
Matthews v New York State Div. of Parole, 95 N.Y.2d at
645; People v Singh, 169 A.D.3d at 832; Matter
of Pierre v Evans, 93 A.D.3d 990, 990-991 ). Here,
petitioner was detained in Virginia at the time that the
parole violation warrant was lodged on September 3, 2015 and
was not entitled to have a preliminary parole revocation
hearing conducted within 15 days of that date. Moreover, as
to petitioner's challenge to the imposition of the
58-month delinquent time assessment, habeas corpus relief is
unavailable because, even if petitioner were to prevail, he
would not be entitled to immediate release (see People ex
rel. Muhammad v Bradt, 68 A.D.3d 1391, 1392 ;
People ex rel. Bariteau v Donelli, 24 A.D.3d 1065,
1065-1066 ). We have considered petitioner's
remaining claims and find them to be unpersuasive.
Accordingly, Supreme Court properly denied his application.
Mulvey, Aarons and Colangelo, JJ., concur.
that the judgment is ...