McGivern v. Donnelly

—Judgment unanimously affirmed without costs. Memorandum: Supreme Court did not err in converting this habeas corpus proceeding into a CPLR article 78 proceeding because petitioner is not entitled to immediate release from custody (see, People ex rel. Jones v Russi, 199 AD2d 1043 , lv denied 83 NY2d 753 ), and the court then properly dismissed the petition based on the failure of petitioner to exhaust his administrative remedies (see, Matter of Nelson v Coughlin, 188 AD2d 1071 , appeal dismissed 81 NY2d 834 ; CPLR 7801 [1]). We reject petitioner’s contention that the retroactive application of 9 NYCRR 8002.6 as amended violates the constitutional prohibition against ex post facto laws (see, People ex rel. Santoro v Hollins, 273 AD2d 829 ). We have considered petitioner’s remaining contention and conclude that it lacks merit. (Appeal from Judgment of Supreme Court, Erie County, Mahoney, J. — CPLR art 78.) Present — Hayes, J. P., Wisner, Hurlbutt, Kehoe and Lawton, JJ.