PEOPLE EX REL CONCEPCION v. TITUS (2026)

MEMORANDUM AND ORDER

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

Memorandum: Petitioner, an incarcerated individual in state prison, commenced this habeas corpus proceeding pursuant to CPLR article 70, contending that he is entitled to immediate release from custody because the Board of Parole (Board) improperly denied his request for release to parole supervision. Petitioner appeals from an order that dismissed the petition and denied his request to convert the matter into a CPLR article 78 proceeding, and we now affirm.

Because “the remedy for an improper denial of parole would be remittal to the Board and not immediate release” (People ex rel. Borrell v. New York State Bd. of Parole, 85 A.D.3d 1515, 1516, 925 N.Y.S.2d 922 [3d Dept. 2011], lv denied 17 N.Y.3d 718, 2011 WL 5839595 [2011], rearg denied 18 N.Y.3d 904, 940 N.Y.S.2d 213, 963 N.E.2d 790 [2012], lv dismissed & rearg dismissed 19 N.Y.3d 991, 951 N.Y.S.2d 106, 975 N.E.2d 488 [2012], reconsideration denied 24 N.Y.3d 1115, 2 N.Y.S.3d 840, 26 N.E.3d 779 [2015]; see People ex rel. Daniels v. Beaver, 303 A.D.2d 1025, 1025, 757 N.Y.S.2d 195 [4th Dept. 2003]), Supreme Court properly determined that habeas corpus relief is unavailable to petitioner.

Moreover, inasmuch as petitioner had not exhausted administrative remedies when he filed the petition (see Matter of Robinson v. Bennett, 300 A.D.2d 715, 716, 752 N.Y.S.2d 730 [3d Dept. 2002]) and failed to name or serve the Board or the Department of Corrections and Community Supervision as a respondent (see Matter of Montes v. New York State Dept. of Corr. & Community Supervision, 223 A.D.3d 1131, 1132, 201 N.Y.S.3d 808 [3d Dept. 2024]), we cannot conclude that the court abused its discretion in denying petitioner's alternative request to convert the habeas corpus proceeding into a CPLR article 78 proceeding. Under the circumstances of this case, the petition would have been subject to dismissal even if the proceeding had been converted to its proper form under CPLR 103 (c).

We have reviewed petitioner's remaining contentions and conclude that they lack merit.