People ex rel. Hopper v. Smith — 115 A.D.2d 239

Majority

p. 239

The People of the State of New York ex rel. William Hopper, Appellant, v Harold J. Smith, as Superintendent of Attica Correctional Facility, Respondent.

Judgment unanimously modified to convert proceeding to one under CPLR article 78 and, as modified, affirmed. Memorandum: Relator

p. 240

instituted a habeas corpus proceeding to challenge findings of a superintendent’s proceeding. Relator was charged with attempting to escape from the Alden Correctional Facility. Special Term, after reviewing the entire record including a confidential report, found that the determination of the hearing officer was supported by substantial evidence.

Inasmuch as the relief sought could not have resulted in relator’s immediate release from confinement, habeas corpus is not the proper remedy (see, People ex rel. Kaplan v Commissioner of Correction of City of N Y., 60 NY2d 648 ). We convert the proceeding, therefore, to one under CPLR article 78 (see, CPLR 103 [c]; 7804 [g]). Upon our review of the record, including the confidential report, we find that substantial evidence in support of the charge was presented at the superintendent’s proceeding (see, CPLR 7803 [4]; Matter of Gross v Henderson, 79 AD2d 1086 , lv denied 53 NY2d 605 ; cf. Matter of Lopez v Smith, 105 AD2d 1124 ). (Appeal from judgment of Supreme Court, Wyoming County, Dadd, J.—habeas corpus.) Present—Hancock, Jr., J. P., Doerr, Green, O’Donnell and Schnepp, JJ.

Cases cited

People ex rel. Kaplan v. Commissioner of Correction 60 NY2d 648 N.Y. 1983-09-15 p. 240
Lopez v. Smith 105 AD2d 1124 N.Y. App. Div. 1984-11-07 p. 240