Opinion
February 10, 2000
Appeal from a judgment of the Supreme Court (Lahtinen, J.), entered April 13, 1999 in Franklin County, which denied petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.
Joseph Greany, Malone, appellant in person.
Eliot Spitzer, Attorney-General (Marcus J. Mastracco of counsel), Albany, for respondents.
Before: MERCURE, J.P., CREW III, PETERS, SPAIN and MUGGLIN, JJ.
MEMORANDUM AND ORDER
While on parole from a sentence imposed for his conviction of various drug-related crimes, petitioner was charged with several parole violations stemming from an incident which led to his arrest for assault in the first degree. Following a parole revocation hearing, the Administrative Law Judge sustained all but one of the charges and recommended that petitioner's parole be revoked. The State Board of Parole accepted the recommendation and petitioner subsequently filed a notice of administrative appeal. Prior to perfecting the appeal, however, petitioner commenced this CPLR article 70 proceeding challenging the parole revocation determination on evidentiary and procedural grounds. Supreme Court dismissed the petition for failure to exhaust administrative remedies and petitioner appeals.
We affirm. Supreme Court properly dismissed the petition because petitioner failed to demonstrate that he exhausted his administrative remedies by pursuing his administrative appeal prior to commencing this proceeding (see, People ex rel. King v. Lacy, 252 A.D.2d 701, lv denied 92 N.Y.2d 811; People ex rel. Joyce v. New York State Div. of Parole, 249 A.D.2d 638). Moreover, even crediting petitioner's unsupported allegation that the administrative appeal was ultimately perfected, such a belated effort would not satisfy the exhaustion requirement or validate the petition nunc pro tunc (see, People ex rel. Woods v. McGreevy, 191 A.D.2d 938, 941; Matter of Alexander v. New York State Bd. of Parole, 175 A.D.2d 526, 527, lv denied 78 N.Y.2d 863). Finally, even if petitioner's constitutional claim might arguably justify a departure from the general rule requiring exhaustion of administrative remedies (see, People ex rel. Hacker v. New York State Div. of Parole, 228 A.D.2d 849, 850, lv denied 88 N.Y.2d 809), habeas corpus relief is nonetheless unavailable because the claim would not entitle petitioner to immediate release (see, People ex rel. Joyce v. New York State Div. of Parole, supra, at 638; People ex rel. Quartararo v. Demskie, 238 A.D.2d 792, 793-794, lv denied 90 N.Y.2d 802).
Petitioner's remaining contentions have been reviewed and rejected as lacking in merit.
ORDERED that the judgment is affirmed, without costs.