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

The PEOPLE of the State of New York ex rel. Charles D. STRAUSS, Appellant, v. NEW YORK STATE DIVISION OF PAROLE, Respondent.

Decided: October 30, 2008

Before:  CARDONA, P.J., SPAIN, LAHTINEN, KANE and STEIN, JJ. Charles D. Strauss, Malone, appellant pro se. Andrew M. Cuomo, Attorney General, Albany (Frank Brady of counsel), for respondent.

Appeal from a judgment of the Supreme Court (Feldstein, J.), entered March 11, 2008 in Franklin County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 70, without a hearing.

In 1991, petitioner was convicted of two counts of burglary in the second degree and two counts of burglary in the third degree and was sentenced, respectively, to concurrent terms of 3 to 9 years and 2 1/313 to 7 years in prison.   He was released to parole supervision in 1993.   He was subsequently charged with violating the terms of his parole as the result of his involvement in two robberies.   A preliminary parole revocation hearing was held on March 16, 1994 in connection with charges stemming from the first robbery, and the final parole revocation hearing in connection therewith was adjourned until December 6, 1994, after the anticipated resolution of the pending criminal charges.   In November 1994, petitioner was convicted of two counts of robbery in the second degree and was sentenced as a predicate felony offender to concurrent terms of 7 1/212 to 15 years in prison, to run consecutive to his 1991 sentences.   On December 2, 1994 when petitioner was received into the custody of the Department of Correctional Services, respondent issued a final declaration of delinquency formally revoking his parole.

In October 2007, petitioner brought the instant application for a writ of habeas corpus alleging, among other things, that he is being illegally detained because he did not receive a final parole revocation hearing within 90 days of the preliminary parole revocation hearing in violation of Executive Law § 259-i(3)(f)(i).   Supreme Court dismissed petitioner's application without a hearing.   This appeal ensued.

We affirm.   Regardless of the merits of petitioner's claim that he was not afforded a final parole revocation hearing in accordance with the requirements of Executive Law § 259-i(3)(f)(i), he is presently incarcerated due to his 1994 convictions of robbery in the second degree which provide an independent basis for revoking his parole pursuant to Executive Law § 259-i(3)(d)(iii) (see People ex rel. Camarano v. Costello, 306 A.D.2d 885, 885, 760 N.Y.S.2d 915 [2003], lv. dismissed 100 N.Y.2d 602, 766 N.Y.S.2d 159, 798 N.E.2d 343 [2003];  Matter of Oquendo v. Travis, 300 A.D.2d 773, 773, 750 N.Y.S.2d 801 [2002] ).   Inasmuch as petitioner is not entitled to immediate release under the circumstances presented, habeas corpus relief is unavailable (see People ex rel. Brown v. New York State Div. of Parole, 70 N.Y.2d 391, 398, 521 N.Y.S.2d 657, 516 N.E.2d 194 [1987] ).   Therefore, his application was properly dismissed.

ORDERED that the judgment is affirmed, without costs.

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Decided: October 30, 2008

Court: Supreme Court, Appellate Division, Third Department, New York.

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