[*1]
Ayala v Williams
2005 NY Slip Op 50733(U)
Decided on May 18, 2005
Supreme Court, Seneca County
Bender, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on May 18, 2005
Supreme Court, Seneca County


Raymond Ayala, Petitioner,

against

Melvin Williams, SUPERINTENDENT OF WILLARD D.T.C. AND ROBERT DENNISON, CHAIRMAN OF THE NYS BOARD OF PAROLE, Respondents.




36144

Dennis F. Bender, J.

The Petitioner in this matter sought a writ of habeas corpus while placed at the Willard Drug Treatment Campus. This Court converted the matter to an Article 78 proceeding since the Petitioner is considered to be on parole, and not incarcerated, thereby rendering writ relief inappropriate. See, Corrections Law §§ 2(20) and 70(1)(c); People ex rel Morejohn v. NYS Board of Parole, 183 Misc 2d, 435.

The Petitioner states that he was revoked and restored to parole supervision conditioned upon successful completion of the Willard Drug Treatment Program on January 21, 2005. Despite that ruling, he was not actually transferred to Willard to start his program until March 1, 2005. These facts are not disputed by the Respondents. From these facts, the Petitioner states the continued detention after he was revoked and restored is unreasonable and in contravention of Criminal Procedure Law § 410.91(1). That statute provides that if a court sentences a defendant to a sentence of parole contingent upon successful completion of the Willard program, the defendant is to be remanded immediately to a DOCS reception center and is not to remain there more than ten days before being accepted into the Willard program.

The Respondents correctly note that CPL § 410.91(1) is not applicable, however, because the commitment to Willard was not as a result of a sentence of a court, but rather, resulted from the actions of the New York State Board of Parole. No statutory or regulatory time requirement by which a parole violator has to be delivered to Willard exists. In conclusion, they argue that "...the passage of 35 days from the time of his final parole revocation determination to his arrival at the Willard Drug Treatment Center does not justify any relief under the above analysis." (Paragraph 12, Return)

While this Court does not rule on the Respondents' assertion that the passage of 35 days from the time of his final parole revocation determination to his arrival at Willard is reasonable, it nonetheless agrees that the Petitioner is not entitled to any current relief. Because the Petitioner is currently participating in the Willard program, and thus is no longer incarcerated, there is no [*2]authority for the Court to direct his release.[FN1] People ex rel Morejohn v. NYS Board of Parole, supra.

The petition is denied without costs.

Dated: May 18, 2005

Hon. Dennis F. Bender

Acting Supreme Court Justice

Footnotes


Footnote 1: As noted by the Respondents, there is no legislative or regulatory directive concerning when a parole violator must be transferred to the Willard Drug Treatment Campus, if he has been revoked and restored contingent upon completion of Willard's program. It is helpful, however, to look at CPL § 410.91(1) which provides, as not above, that a sentenced defendant is to be immediately transferred to a DOCS reception center and relocated to Willard within ten days. No proffer is made by the Respondents as to why such a time frame is not equally reasonable in the case of a parole violator. Further, in Ayers v. Coughlin, 72 NY2d 346 (1988), the Court of Appeals concurred with the Supreme Court's determination that the directive of CPL 430.20(1) which required the State to pick up State-ready inmates from local jails "forthwith", means within ten days. While neither Executive Law Section 259-i(3) nor 9 NYCRR Section 8005.20(c)(2) provide a time frame or even a provision for delivery "forthwith", it nonetheless is unreasonable to presume that the Parole Board has unfettered discretion to withhold delivery to the Willard facility as long as it chooses. Certainly judicial review of the reasonableness of a delay is appropriate.