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

PEOPLE of the State of New York ex rel. Kenneth FARREN, Petitioner-Appellant, v. Melvin WILLIAMS, Superintendent, Gowanda Correctional Facility, Respondent-Respondent.

Decided: July 09, 1999

PRESENT:  DENMAN, P.J., LAWTON, HURLBUTT, SCUDDER and BALIO, JJ. Alan Birnholz, Buffalo, for petitioner-appellant. Victor Paladino, Albany, for respondent-respondent.

 Supreme Court properly denied the petition for a writ of habeas corpus.   We reject the contention of relator that the provisions of Vehicle and Traffic Law § 1196(4) require that the sentence of incarceration imposed upon his conviction of driving while intoxicated be terminated because he completed an alcohol rehabilitation program prior to sentencing.   Relator concedes that he was not eligible for the program based upon his conviction of an alcohol-related crime within five years of the instant conviction (see, Vehicle and Traffic Law § 1196[4] ).   He contends, however, that respondent is equitably estopped from requiring him to continue serving his sentence because he completed a rehabilitation program.   We disagree.  “Absent an unusual factual situation, ‘estoppel is not available against a governmental agency engaging in the exercise of its governmental functions' ” (Advanced Refractory Technologies v. Power Auth. of State of N.Y., 81 N.Y.2d 670, 677, 603 N.Y.S.2d 285, 623 N.E.2d 6;  see also, Matter of Casella v. Crosson, 178 A.D.2d 963, 578 N.Y.S.2d 322).

Judgment unanimously affirmed without costs.


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