Opinion
February 6, 1995
Appeal from the Supreme Court, Dutchess County (Dolan, J.).
Ordered that the judgment is reversed and the proceeding is dismissed, without costs or disbursements.
The petitioner was conditionally released on September 9, 1994, subject to written special conditions (see, Executive Law §§ 259-g, 259-c; 9 N.Y.CRR part 8003; Penal Law § 70.40). Those conditions included a requirement that he reside in an approved residence, specifically, the home of his sister in Glenmont, New York. However, on the morning of his release the petitioner's sister revoked her consent to have him live with her, and new special conditions were imposed, which included a requirement that the petitioner reside at a residential treatment facility located at the Fishkill Correctional Facility (see, Correction Law § 73). The petitioner signed a form containing the modified conditions, indicating his understanding and consent thereto, as required by Executive Law § 259-g (2). He then sought relief in the nature of a writ of habeas corpus.
Habeas corpus will lie only when the petitioner is entitled to immediate release (see, People ex rel. Kaplan v. Commissioner of Correction of City of N.Y., 60 N.Y.2d 648; People ex rel. Mendolia v. Superintendent, 47 N.Y.2d 779; People ex rel. Hampton v. Scully, 166 A.D.2d 734). It is an alternative remedy and "may be refused in the exercise of discretion where full relief may be obtained in other more appropriate proceedings" (People ex rel. Davis v. Arnette, 57 A.D.2d 562, affd 44 N.Y.2d 877). In the instant case, the petitioner has been granted a conditional release from custody and, in effect, seeks to challenge the validity of certain of the conditions which have been proceeding pursuant to CPLR article 78, to determine whether or not the conditions were arbitrarily or capriciously imposed, or were not made in accordance with the law (see, Matter of Gerena v Rodriguez, 192 A.D.2d 606). Although this Court has the power to convert the petition into a proceeding pursuant to CPLR article 78 (see, CPLR 103 [c]; People ex rel. Brown v. New York State Div. of Parole, 70 N.Y.2d 391, 398), we do not consider that course to be appropriate upon this record (see, People ex rel. Hampton v. Scully, 166 A.D.2d 734, supra). Mangano, P.J., Bracken, Sullivan, Altman and Goldstein, JJ., concur.