Opinion
October 11, 1983
Judgment, Supreme Court, Bronx County (Mazur, J.), entered August 31, 1983, which sustained petitioner's writ of habeas corpus to the extent of directing his release on parole "unless the Board of Parole affords [him] a new, complete and meaningful parole release hearing with an interpreter at the next available date", unanimously reversed, on the law, without costs or disbursements, and the writ dismissed. In conditionally sustaining the writ Trial Term assigned as its reasons the absence of an Albanian interpreter at petitioner's parole release hearing and the failure of the Parole Board to consider any factor other than the seriousness of the underlying offense. The record does not support these findings. The data sheet prepared for the Parole Board's use set forth all the relevant factors which the board is required to consider. (See Executive Law, § 259-i, subd 1, par [a]; subd 2, par [c]; see, also, 9 NYCRR 8001.3, 8002.3.) These factors were discussed with petitioner at the hearing, and although not mentioned in its decision, the board is presumed to have considered them (see Matter of Friedman v Hammock, 80 A.D.2d 976, affd 54 N.Y.2d 799; Matter of Qafa v Hammock, 80 A.D.2d 952). Whatever his language handicap the record discloses that petitioner understood and responded to the commissioner's questions and comments. In any event, even if the hearing were tainted by impropriety the validity of the judgment of conviction would remain unaffected since petitioner is incarcerated by virtue of a valid commitment. Where the legality of the detention is not subject to challenge, the detainee is not entitled to immediate release and, hence, habeas corpus is not available to him. (See, e.g., People ex rel. Mendolia v Superintendent, Green Haven Correctional Facility, 47 N.Y.2d 779; People ex rel. Lane v Vincent, 32 N.Y.2d 940.) For reasons already noted, however, had petitioner sought review of the board's determination through a CPLR article 78 proceeding the result would be the same.
Concur — Kupferman, J.P., Sullivan, Silverman, Bloom and Alexander, JJ.