Felipe Concepcion, Fallsburg, appellant pro se. Letitia James, Attorney General, Albany (Frank Brady of counsel), for respondent.
MEMORANDUM AND ORDER
Appeal from a judgment of the Supreme Court (Schick, J.), entered September 2, 2020 in Sullivan County, which denied petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.
Petitioner was convicted in 1991 of multiple counts of murder in the second degree and other crimes for which he is currently serving a lengthy prison sentence, and is not eligible for parole until 2066 (People v. Concepcion, 187 A.D.2d 316, 590 N.Y.S.2d 695 , lv denied 81 N.Y.2d 787, 594 N.Y.S.2d 733, 610 N.E.2d 406 ). In July 2020, he filed an application for a writ of habeas corpus seeking his immediate release from Sullivan Correctional Facility (hereinafter SCF), asserting that his medical conditions placed him at increased risk if exposed to the novel coronavirus that causes COVID–19. Petitioner contended that the conditions and safety practices at SCF during the COVID–19 pandemic were unconstitutional in that, among other things, they constituted cruel and unusual punishment and deprived him of due process (see U.S. Const, 5th, 6th, 8th, 14th Amends). Respondent moved to dismiss, arguing that petitioner was not entitled to immediate release. Supreme Court denied the application on the merits, based upon our decision in People ex rel. Carroll v. Keyser, 184 A.D.3d 189, 125 N.Y.S.3d 484 (2020). Petitioner appeals.1
We affirm. We have reviewed the record and the facts unique to petitioner's circumstances regarding his underlying health conditions. For reasons explained in People ex rel. Figueroa v. Keyser, 193 A.D.3d 1148, 1148–51, 145 N.Y.S.3d 663 (2021), we find that petitioner failed to satisfy his burden to demonstrate that his detention at SCF was illegal or unconstitutional, so as to entitle him to relief pursuant to a writ of habeas corpus (see CPLR 7002[a]; 7010[a]; People ex rel. Carroll v. Keyser, 184 A.D.3d at 192–193, 125 N.Y.S.3d 484). Petitioner's remaining claims have been examined and we likewise find that none establishes the illegality of his incarceration or his entitlement to immediate release (see People ex rel. Brown v. New York Div. of Parole, 70 N.Y.2d 391, 398, 521 N.Y.S.2d 657, 516 N.E.2d 194 ; People ex rel. Kaplan v. Commissioner of Correction of City of N.Y., 60 N.Y.2d 648, 649, 467 N.Y.S.2d 566, 454 N.E.2d 1309 ). Accordingly, we find that Supreme Court properly denied the application.
ORDERED that the judgment is affirmed, without costs.
1. We exercise our discretion to treat defendant's premature notice of appeal as valid (see CPLR 5501).
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