People ex rel. Harrison v. Coombe

Appeal from a judgment of the Supreme Court at Special Term (Vogt, J.), entered October 15, 1981 in Ulster County, which denied petitioner’s application for a writ of habeas corpus, without a hearing. .Petitioner was sentenced by the Supreme Court, New York County, on January 28, 1971, to an indeterminate term of 15 years to life imprisonment upon his conviction of felony murder, second degree. Petitioner contends he is denied due process and equal protection of the law as a result of the operation of subdivision 3 of section 259-h of the Executive Law (derived from Correction Law, § 212-a, subd 3). Petitioner further demands that he be allowed to appear before the New York State Board of Parole immediately for release consideration. Petitioner argues that he is deprived of equal protection of the law and due process in that subdivision 3 of section 259-h permits defendants who 'received a sentence of 15 years to life under the old law to be eligible for parole after serving 8 Vs years while he will not become eligible until he has served 15 years. We disagree. The petition was properly dismissed by Special Term. An affirmance is required. Application of subdivision 3 of section 259-h of the Executive Law to petitioner’s situation would not result in his immediate release from an illegal detention. Habeas corpus relief is, therefore, inappropriate (People ex rel. Douglas v Vincent, 50 NY2d 901, 903; People ex rel. World v Jones, 88 AD2d 1096). Moreover, petitioner has failed to demonstrate that he 1027 has been deprived of equal protection of the law since he was not sentenced under the laws in existence prior to September 1,1967, to which the provisions of subdivision 3 of section 259-h of the Executive Law or its predecessor, former subdivision 3 of section 212-a of the Correction Law, apply (People v Blume, 12 NY2d 705; see, also, People v Drayton, 39 NY2d 580). Judgment affirmed, without costs. Sweeney, J. P., Main, Mikoll, Yesawich, Jr., and Levine, JJ., concur.