PEOPLE JOHNSON v. ALLARD (2003)

Supreme Court, Appellate Division, Fourth Department, New York.

PEOPLE of the State of New York ex rel. Jerry JOHNSON, Petitioner-Appellant, v. Michael ALLARD, Acting Superintendent, Gowanda Correctional Facility, and Brion D. Travis, Chairman, New York State Division of Parole, Respondents-Respondents.

Decided: March 21, 2003

Present: PINE, J.P., WISNER, SCUDDER, KEHOE, and BURNS, JJ.

Salvatore C. Adamo, Buffalo, for Petitioner Appellant.

Supreme Court properly denied the petition for a writ of habeas corpus. Petitioner did not seek immediate release in his petition but, rather, sought to be brought before the court “for the purpose of Inquiring into the cause of [his] imprisonment and restraint.” In any event, the reversal of the judgment convicting petitioner of three misdemeanors and the dismissal of those charges does not mandate his immediate release. Where, as here, a final revocation hearing has been held, “the dismissal of criminal charges or an acquittal following trial does not preclude a parole revocation determination based upon the same underlying conduct” (Matter of Williams v. New York State Bd. of Parole, 277 A.D.2d 617, 617, 715 N.Y.S.2d 541).

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

MEMORANDUM:

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