PEOPLE EMM v. HOLLINS

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

PEOPLE of the State of New York ex rel. Charles EMM, Petitioner-Appellant, v. Melvin HOLLINS, Superintendent, Oneida Correctional Facility, Respondent-Respondent.

Decided: November 15, 2002

Present WISNER, J.P., HURLBUTT, SCUDDER, GORSKI, and LAWTON, JJ. David M. Giglio, Utica, for Petitioner-Appellant. Eliot Spitzer, Attorney General, Albany (Marcus J. Mastracco of Counsel), for Respondent-Respondent.

 Petitioner contends that he is entitled to habeas corpus relief because respondent denied him due process by failing to review his good behavior allowances prior to his conditional release date.   Because petitioner is serving a sentence on a prior conviction with a maximum term of life imprisonment, he is not eligible for good behavior allowances (see Correction Law § 803[1][a] ).   Even assuming, arguendo, that petitioner was eligible for conditional release, we conclude that he would not be entitled to immediate release from prison, and thus in any event his request for habeas corpus relief is inappropriate (see People ex rel. Wilson v. Hanslmaier, 232 A.D.2d 702, 702, 648 N.Y.S.2d 52).  “Although this Court has the power to convert a petition for a writ of habeas corpus into a CPLR article 78 petition, [petitioner] has not requested that relief and on this record we do not consider it appropriate” (People ex rel. Travis v. Coombe, 219 A.D.2d 881, 882, 632 N.Y.S.2d 340 [internal citation omitted] ) particularly where, as here, petitioner is ineligible for good behavior allowances as a matter of law (see § 803[1][a] ).

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

MEMORANDUM: