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People ex rel. Jackson v. Morrissey

43 A.D.3d 1301 Court N.Y. App. Div. Decision date 2007-09-28 English

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p. 1301
The People of the State of New York ex rel. James Jackson, Appellant, v James Morrissey, as Superintendent of Butler Correctional Facility, Respondent.
[842 NYS2d 816]

Appeal from a judgment of the Supreme Court, Wayne County (Stephen R. Sirkin, A.J.), entered September 5, 2006 in a habeas corpus proceeding. The judgment dismissed the petition.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Petitioner commenced this proceeding seeking habeas corpus relief on the ground that he did not receive a written final declaration of delinquency in accordance with Executive Law § 259-i (3) (d) (iii) and 9 NYCRR 8004.3 (g) upon being charged with and convicted of a felony while on parole. We reject the contention of petitioner that he had a due process right to receive the final written declaration of delinquency when his parole was revoked and he was reincarcerated upon being charged with and convicted of the new crime {see Morrissey v Brewer, 408 US 471 , 490 [1972]; see also People ex rel. Harris v Sullivan, 74 NY2d 305 , 310 [1989]). “Inherent in a

p. 1302
new felony conviction is the fact that a parole violation was sustained” (Matter of O’Quinn v New York State Bd. of Parole, 132 Misc 2d 92 , 95 [1986]). Upon his conviction of a new crime, petitioner’s parole was automatically revoked by operation of law (see Matter of Thompson v New York State Div. of Parole, 171 AD2d 909 [1991]), and respondent had “a continuing, nondiscretionary, ministerial duty” to recalculate the maximum expiration date of petitioner’s sentence (People ex rel. Melendez v Bennett, 291 AD2d 590 , 591 [2002], lv denied 98 NY2d 602 [2002]; see Matter of Cruz v New York State Dept, of Correctional Servs., 288 AD2d 572 , 573 [2001], appeal dismissed 97 NY2d 725 [2002]). Present—Hurlbutt, J.P., Gorski, Lunn, Fahey and Peradotto, JJ.

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