Opinion
No. 929 KAH 06-02828.
September 28, 2007.
Appeal from a judgment of the Supreme Court, Wayne County (Stephen R. Sirkin, A.J.), entered September 5, 2006 in a habeas corpus proceeding. The judgment dismissed the petition.
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.
Before: Present — Hurlbutt, J.P., Gorski, Lunn, Fahey and Peradotto, JJ.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum: 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of petitioner that he had a due process right to receive the final written declaration of delinquency when his parole was revoked and he was reincarcerated upon being charged with and convicted of the new crime ( see Morrissey v Brewer, 408 US 471, 490; see also People ex rel. Harris v Sullivan, 74 NY2d 305, 310). "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). 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 AD2d 909), 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 AD2d 590, 591, lv denied 98 NY2d 602; see Matter of Cruz v New York State Dept. of Correctional Servs., 288 AD2d 572, 573, appeal dismissed 97 NY2d 725).