People ex rel. Rodriguez v. Miller

Appeal from a judgment of the Supreme Court (McKeighan, J.), entered April 15, 2016 in Washington County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 70, without a hearing. Petitioner is currently serving two concurrent five-year prison terms based on two convictions of robbery in the first degree (People v Rodriguez, 144 AD3d 498 [2016], lv denied 28 NY3d 1188 [2017]). Petitioner commenced this CPLR article 70 proceeding for a writ of habeas corpus claiming that he should be transferred to a Comprehensive Alcohol and Substance Abuse Treatment program and that he should not be housed in a maximum security facility (see generally Penal Law § 60.04 [6]; 7 NYCRR 1950.2). * Supreme Court dismissed the petition, and petitioner now appeals. Even if the issues raised by petitioner in his petition were *1501 substantiated and determined to have merit, he would not be entitled to immediate release from prison and, therefore, a writ of habeas corpus could not be granted (see People ex rel. Kaplan v Commissioner of Correction of City of N.Y., 60 NY2d 648, 649 [1983]; People ex rel. Vickery v Griffin, 125 AD3d 1018, 1019 [2015], lv denied 25 NY3d 908 [2015]; People ex rel. White v Smith, 120 AD3d 1469, 1470 [2014]). Accordingly, Supreme Court properly dismissed the petition (see CPLR 7003 [a]). Peters, P.J., McCarthy, Clark, Mulvey and Aarons, JJ., concur. Ordered that the judgment is affirmed, without costs. Footnotes [*] Respondent has submitted a letter indicating that it was not served and did not appear in Supreme Court.