People ex rel. Sansalone v. Schriver

—Appeal from a judgment of the Supreme Court (Torraca, J.), entered September 24, 1997 in Ulster County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 70, without a hearing. Petitioner, a prison inmate serving a prison term of 7V2 to 15 years for his convictions of the crimes of burglary in the second degree, possession of burglar tools and criminal mischief, was denied parole release. Petitioner commenced this CPLR article 70 proceeding and Supreme Court dismissed his petition. We affirm. Initially, we find that Supreme Court properly dismissed the petition because petitioner is not entitled to the relief that he seeks. Habeas corpus relief is only available to a petitioner who would be entitled to immediate release (see, People ex rel. Joyce v New York State Div. of Parole, 249 AD2d 638; People ex rel. Lee v La Paglia, 249 AD2d 601). In this case, petitioner has served approximately 7V2 years of his sentence and the claims in his petition alleging statutory and constitutional violations, even if meritorious, would not entitle petitioner to immediate release. Parole decisions are discretionary and prisoners have no right to be released prior to the expiration of their sentences (see, People ex rel. Quartararo v Demskie, 238 AD2d 792, 793, lv denied 90 NY2d 802). In any event, we agree with Supreme Court’s decision to dismiss the petition as 606 petitioner commenced this proceeding prior to pursuing an available administrative appeal (see, People ex rel. Scott v Babbie, 248 AD2d 909, lv denied 92 NY2d 803; People ex rel. Carroll v Russi, 232 AD2d 692). Petitioner has since filed and perfected an administrative appeal, but that appeal is pending and thus, this proceeding is premature (see, Matter of La Bounty v Russi, 208 AD2d 1071, appeal dismissed and Iv denied 85 NY2d 889). Therefore, we find that Supreme Court properly dismissed the petition. Mikoll, J. P., Yesawich Jr., Spain, Carpinello and GrafFeo, JJ., concur. Ordered that the judgment is affirmed, without costs.