PEOPLE JACKSON v. MORRISSEY

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

The PEOPLE of the State of New York ex rel. James JACKSON, Petitioner-Appellant, v. James MORRISSEY, Superintendent, Butler Correctional Facility, Respondent-Respondent.

Decided: September 28, 2007

PRESENT:  HURLBUTT, J.P., GORSKI, LUNN, FAHEY, AND PERADOTTO, JJ. D.J. & J.A. Cirando, Esqs., Syracuse (Robert H. Middlemiss of Counsel), for Petitioner-Appellant. Andrew M. Cuomo, Attorney General, Albany (Jennifer Grace Miller of Counsel), for Respondent-Respondent.

 Petitioner commenced this proceeding seeking habeas corpus relief on the ground that he did not receive a written final declaration of delinquency in accordance with Executive Law § 259-i(3)(d)(iii) and 9 NYCRR 8004.3(g) upon being charged with and convicted of a felony while on parole.   We reject the contention of petitioner that he had a due process right to receive the final written declaration of delinquency when his parole was revoked and he was reincarcerated upon being charged with and convicted of the new crime (see Morrissey v. Brewer, 408 U.S. 471, 490, 92 S.Ct. 2593, 33 L.Ed.2d 484;  see also People ex rel. Harris v. Sullivan, 74 N.Y.2d 305, 310, 546 N.Y.S.2d 821, 545 N.E.2d 1209).  “Inherent in a new felony conviction is the fact that a parole violation was sustained” (Matter of O'Quinn v. New York State Bd. of Parole, 132 Misc.2d 92, 95, 503 N.Y.S.2d 483).   Upon his conviction of a new crime, petitioner's parole was automatically revoked by operation of law (see Matter of Thompson v. New York State Div. of Parole, 171 A.D.2d 909, 567 N.Y.S.2d 191), and respondent had “a continuing, nondiscretionary, ministerial duty” to recalculate the maximum expiration date of petitioner's sentence (People ex rel. Melendez v. Bennett, 291 A.D.2d 590, 591, 738 N.Y.S.2d 112, lv. denied 98 N.Y.2d 602, 744 N.Y.S.2d 763, 771 N.E.2d 836;  see Matter of Cruz v. New York State Dept. of Correctional Servs., 288 A.D.2d 572, 573, 732 N.Y.S.2d 651, appeal dismissed 97 N.Y.2d 725, 740 N.Y.S.2d 696, 767 N.E.2d 153).

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

MEMORANDUM: