THE PEOPLE OF THE STATE OF NEW YORK EX REL LEROY HAYES PETITIONER APPELLANT v. NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES RESPONDENT RESPONDENT (2010)

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

THE PEOPLE OF THE STATE OF NEW YORK EX REL. LEROY HAYES, PETITIONER-APPELLANT, v. NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES, RESPONDENT-RESPONDENT.

KAH 10-00951

Decided: November 12, 2010

PRESENT: MARTOCHE, J.P., SCONIERS, GREEN, AND PINE, JJ.

HUGHES HUBBARD & REED LLP, NEW YORK CITY (KEVIN F. CLINES OF COUNSEL), FOR PETITIONER-APPELLANT. ANDREW M. CUOMO, ATTORNEY GENERAL, ALBANY (VICTOR PALADINO OF COUNSEL), FOR RESPONDENT-RESPONDENT.

MEMORANDUM AND ORDER

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

Memorandum: Supreme Court properly dismissed the petition seeking a writ of habeas corpus. Petitioner contends that, because he was incarcerated when he committed the assault underlying the parole violation charges, he was not on parole and therefore could not violate his parole. We reject that contention (see People ex rel. Wilson v. Jackson, 2 A.D.2d 638). As a parolee, petitioner remained in the legal custody of the Division of Parole “until expiration of the maximum term or period of sentence, or expiration of the period of supervision, including any period of [postrelease] supervision, or return to the custody of [respondent]” (Executive Law § 259-i[2][b] ). Thus, petitioner was on parole despite the fact that he was incarcerated when he committed the assault in question.

Patricia L. Morgan

Clerk of the Court

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