Opinion
KAH 04-00428.
October 1, 2004.
Appeal from a judgment (denominated order and judgment) of the Supreme Court, Onondaga County (John J. Brunetti, A.J.) entered December 24, 2003 in a proceeding pursuant to CPLR article 70. The judgment dismissed the petition for a writ of habeas corpus.
Before: Pigott, Jr., P.J., Hurlbutt, Gorski and Lawton, JJ.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum: Supreme Court properly dismissed the petition seeking a writ of habeas corpus. Contrary to petitioner's contention, respondent established at the hearing that petitioner waived his right to a preliminary parole revocation hearing ( cf. People ex rel. Melendez v. Warden of Rikers Is. Correctional Facility, 214 AD2d 301, 302-303). There also is no merit to the contention of petitioner that he is entitled to immediate release because respondent did not file or serve a return in accordance with CPLR 7008. "All of the requirements of CPLR 7008 (subd [b]) were met at the outset of the appearance on behalf of the respondent on the return date and, accordingly, the absence of a formal return was an irregularity and not a defect which could be determinative of [the matter]" ( People ex rel. Pray v. Allen, 63 AD2d 1056, 1056, lv denied 45 NY2d 774).