THE PEOPLE OF THE STATE OF NEW YORK EX REL ROBERT CASS PETITIONER RESPONDENT v. SIBATU KHAHAIFA SUPERINTENDENT ORLEANS CORRECTIONAL FACILITY RESPONDENT APPELLANT (2011)

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

THE PEOPLE OF THE STATE OF NEW YORK EX REL. ROBERT CASS, PETITIONER–RESPONDENT, v. SIBATU KHAHAIFA, SUPERINTENDENT, ORLEANS CORRECTIONAL FACILITY, RESPONDENT–APPELLANT.

KAH 11–00458

Decided: November 18, 2011

PRESENT: FAHEY, J.P., CARNI, SCONIERS, GORSKI, AND MARTOCHE, JJ.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (OWEN DEMUTH OF COUNSEL), FOR RESPONDENT–APPELLANT. MULDOON & GETZ, ROCHESTER (MARTIN P. MCCARTHY, II, OF COUNSEL), FOR PETITIONER–RESPONDENT.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law without costs and the petition is dismissed.

Memorandum: Respondent appeals from an order granting the petition for a writ of habeas corpus. We note at the outset that the order was subsumed in the final judgment, from which no appeal was taken. Nevertheless, we exercise our discretion to treat the notice of appeal as valid and deem the appeal as taken from the judgment (see Hughes v. Nussbaumer, Clarke & Velzy, 140 A.D.2d 988; see also CPLR 5520[c] ), and we reverse. Petitioner was not entitled to habeas corpus relief because he violated a condition of postrelease supervision, which was properly imposed before petitioner completed the originally imposed sentence of imprisonment (see People v. Lingle, 16 NY3d 621, 629–633).

Patricia L. Morgan

Clerk of the Court

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