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People ex rel. Caswell v. New York State Division of Parole

11 A.D.3d 1008 Court N.Y. App. Div. Decision date 2004-10-01 English

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p. 1008
The People of the State of New York ex rel. Reggie Caswell, Appellant, v New York State Division of Parole, Respondent.
[782 NYS2d 230]

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.

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 [1995]). There also is no merit to the contention of petitioner that he is entitled to immediate

p. 1009
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 [1978], lv denied 45 NY2d 774 [1978]). Present—Pigott, Jr., P.J., Hurlbutt, Gorski and Lawton, JJ.

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