Opinion
08/1967.
Decided on April 8, 2008.
STUART BYRNE, Pro Se Petitioner.
MICHAEL C. GREEN, DISTRICT ATTORNEY, LESLIE E. SWIFT, ESQ., of Counsel, Attorney for Respondent.
Petitioner initially applied for poor person filing status on February 11, 2008. The order for permission to proceed as a poor person was signed on February 13, 2008 and returned under cover dated February 20, 2008 advising petitioner to submit his Order to Show Cause for signature. Petitioner submitted the Order to Show Cause on or about February 21, 2008, at a time he had been released or was about to be released, seeking habeas corpus relief under CPLR Article 70 and/or relief under CPLR Article 78.
Petitioner claims which is supported by a transcript before Judge Keenan that he was improperly sentenced to an indeterminate sentence of two to four years. (Transcript page 2). Upon his pro se 440 motion, petitioner appeared before Judge Keenan for re-sentencing on August 23, 2007. Judge Keenan reduced the 2-4 indeterminate sentence to 1 ½ years determinate and 1 ½ post release supervision. (Transcript pg 4) Judge Keenan advised defendant that he was entitled to credit under the new determinate sentence but left the issue of calculation of jail credit up to the Department of Corrections. (Transcript pg 5,6).
Petitioner sent several letters to various administrators within DOCS seeking to have the errors on his time computation corrected based upon the re-sentence determination of Judge Keenan. Petitioner contends that as of September 9, 2007 he had served the full eighteen months of his eighteen month corrected determinate sentence. On September 19, 2007 petitioner received a letter from Ms C. Smith advising that the time computation issue needed to be followed up with "IRC" or contact his attorney. Petitioner has submitted copies of letters seeking assistance of his attorney but indicates that the attorney did not follow up with him or for him.
Law and Rationale:
Respondent correctly submits that petitioner's application should be dismissed since habeas corpus relief is unavailable as moot once the relator has been released. ( People ex rel Wilder v. Markley, 26 NY2d 648, (1970); People ex rel Taylor v. Festa, 54 AD2d 820, (4th Dept., 1976)).
The Court may convert the habeas corpus application into an Article 78 which relief was also requested in the Order to Show Cause to compel New York State Department of Corrections (DOCS) to provide a proper time computation to petitioner. ( Green v. Attica, 52 AD2d 292, (4th Dept., 1976)). Petitioner does not deny that the request for release is moot as to his incarcerated time based upon his release status, but he contends that the post release supervision time is inaccurate based upon the error in his original release date. This would obligate petitioner to serve a longer post release supervision period.
However, since petitioner has submitted no proof that he has exhausted his administrative remedies with regard to seeking a formal determination by DOCS as to a corrected time computation or to the NYS Parole Authority as to his end date for post release supervision, nor has he properly named or served those parties, the Court has no authority to convert to an Article 78 to compel non parties to provide such computation.
Based on the papers submitted, it would appear without resolution thereof, that in a proper forum that petitioner is entitled to the relief he seeks. It seems axiomatic, based upon DOCS" continuing, nondiscretionary, ministerial duty' to make accurate calculations fo terms of imprisonment, a duty that requires it to correct known errors"', that DOCS and/or the Parole Authority would provide the necessary, corrected time calculations, if any, upon proper request by petitioner. ( Macguire v. NYS Division of Parole, 304 AD2d 1003, (3rd Dept., 2003)). Since, by his own calculations, petitioner would not be entitled to release from parole supervision until sometime in 2009, he has ample time to properly seek those calculations .
Accordingly, petitioner's application for Writ of Habeas Corpus is dismissed as moot.
This shall constitute the decision and order of the Court. The signing of this decision and order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the provisions of that rule regarding entry, filing and notice of entry. However, the filing of the underlying motion papers upon which this motion was made is hereby dispensed with pursuant to CPLR 2220. Attorney for the respondent is directed to enter this Decision/Order without notice and to serve all attorneys of record with a copy of this decision with notice of entry.
SO ORDERED.