People ex rel. Archer v. New York State Board of Parole

Motion for reargument granted, decision and order of January 14, 1977 vacated, and judgment unanimously modified in accordance with the following memorandum: Petitioner was sentenced on June 6, 1973 to an indeterminate term of up to four years following his conviction on a plea to burglary, third degree. On November 7, 1975 he was granted a conditional release. On December 12, 1975 he was arrested for a burglary and later was sentenced to a term of two to four years to run concurrently with his parole time. In a habeas corpus proceeding petitioner made an application to be released, which Special Term treated as an article 78 proceeding. It correctly held that petitioner was not entitled to be released upon habeas corpus from the custody of the Department of Correction and to be returned to parole status because he was incarcerated under a two-to-four year sentence imposed on him in 1976 as a result of the 1975 burglary (see Matter of Greene v Smith, 52 AD2d 292). Special Term, however, improperly dismissed the parole detainer violation warrant with prejudice on the ground that petitioner was not afforded a final revocation hearing (Correction Law, § 212, subd 7). Rather than dismiss the parole detainer violation warrant, petitioner should be given a final parole revocation hearing. (See Matter of Beattie v New York State Bd. of Parole, 39 NY2d 445). Present—Moule, J. P., Cardamone, Simons, Dillon and Witmer, JJ. (Order entered Feb. 28, 1977.)