PEOPLE DANIELS v. BEAVER (2003)

 Supreme Court properly dismissed the petition seeking a writ of habeas corpus because petitioner is not entitled to immediate release even if his present contentions have merit.  “Even if respondent did miscalculate petitioner's conditional release date and he were eligible for conditional release at the present time, petitioner would not be entitled to immediate release from prison” (People ex rel. Wilson v. Hanslmaier, 232 A.D.2d 702, 702, 648 N.Y.S.2d 52;  see People ex rel. Buroughs v. Travis, 273 A.D.2d 560, 709 N.Y.S.2d 661).   Assuming, arguendo, that petitioner had been denied his right to appear before the Parole Board, which is an assumption refuted by incontrovertible documentary evidence (see State of New York v. Peerless Ins. Co., 117 A.D.2d 370, 374, 503 N.Y.S.2d 448), we conclude that petitioner would not be entitled to immediate release;  “[p]arole decisions are discretionary and prisoners have no right to be released prior to the expiration of their sentences” (People ex rel. Sansalone v. Schriver, 252 A.D.2d 605, 605, 673 N.Y.S.2d 951;  see People ex rel. Quartararo v. Demskie, 238 A.D.2d 792, 793, 656 N.Y.S.2d 451, lv. denied 90 N.Y.2d 802, 660 N.Y.S.2d 712, 683 N.E.2d 335).  “Although this Court has the power to convert a petition for a writ of habeas corpus into a CPLR article 78 petition * * *, [petitioner] has not requested that relief and on this record we do not consider it appropriate” (People ex rel. Travis v. Coombe, 219 A.D.2d 881, 882, 632 N.Y.S.2d 340;  see People ex rel. Bagley v. Albaugh, 278 A.D.2d 891, 718 N.Y.S.2d 914, lv. denied 96 N.Y.2d 709, 725 N.Y.S.2d 639, 749 N.E.2d 208).

 Contrary to the further contention of petitioner, the notice that his final parole revocation hearing was adjourned did not constitute a written contract that entitled him to such hearing.   When he was subsequently convicted of a felony before the hearing date, his parole was revoked by operation of law and thus no final revocation hearing was required (see Executive Law § 259-i [3] [d][iii];  see also People ex rel. Ward v. Russi, 219 A.D.2d 862, 632 N.Y.S.2d 45, lv. denied 87 N.Y.2d 803, 639 N.Y.S.2d 311, 662 N.E.2d 792).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: