Opinion
July 2, 1998
Appeal from the Supreme Court, Torraca, J.
Petitioner, a prison inmate serving a prison term of 7 1/2 to 15 years for his convictions of the crimes of burglary in the second degree, possession of burglar tools and criminal mischief, was denied parole release. Petitioner commenced this CELL article 70 proceeding and Supreme Court dismissed his petition. We affirm.
Initially, we find that Supreme Court properly dismissed the petition because petitioner is not entitled to the relief that he seeks. Habeas corpus relief is only available to a petitioner who would be entitled to immediate release ( see, People ex rel. Joyce v. New York State Div. of Parole, 249 A.D.2d 638; People ex rel. Lee v. La Paglia, 249 A.D.2d 601). In this case, petitioner has served approximately 7 1/2 years of his sentence and the claims in his petition alleging statutory and constitutional violations, even if meritorious, would not entitle petitioner to immediate release. Parole decisions are discretionary and prisoners have no right to be released prior to the expiration of their sentences ( see, People ex rel. Quartararo v. Demskie, 238 A.D.2d 792, 793, lv denied 90 N.Y.2d 802). In any event, we agree with Supreme Court's decision to dismiss the petition as petitioner commenced this proceeding prior to pursuing an available administrative appeal ( see, People ex rel. Scott v. Babbie, 248 A.D.2d 909, lv denied 92 N.Y.2d 803; People ex rel. Carroll v. Russi, 232 A.D.2d 692). Petitioner has since filed and perfected an administrative appeal, but that appeal is pending and thus, this proceeding is premature ( see, Matter of La Bounty v. Russi, 208 A.D.2d 1071; appeal dismissed and lv denied 85 N.Y.2d 889). Therefore, we find that Supreme Court properly dismissed the petition.
Mikoll, J. P., Yesawich Jr., Spain, Carpinello and Graffeo, JJ., concur.
Ordered that the judgment is affirmed, without costs.