This is a habeas corpus proceeding that was originated by the petition for a writ of habeas corpus (and Affidavit in Support of Petition For a Writ of Habeas Corpus) of Kevin Smith, stamped as filed in the Clinton County Clerk's Office on March 6, 2007. Petitioner, who is an inmate at the Lyon Mountain Correctional Facility, is challenging his continued incarceration in the custody of the New York State Department of Correctional Services. The Court issued an Order to Show Cause on March 21, 2007, and has received and reviewed respondent's Return, dated April 27, 2007, as well as petitioner's Reply thereto, filed in the Clinton County Clerk's office on May 10, 2007.

On September 13, 2004, the petitioner was sentenced in Chautauqua County Court to a controlling, concurrent, indeterminate sentence of imprisonment of 2 to 6 years upon his convictions of the crimes of Scheme to Defraud 1�, Offering a False Instrument for Filing 1�, Forgery 2�, Criminal Possession of a Forged Instrument 2� and Criminal Usury 1�. The petitioner was initially received into DOCS custody on September 30, 2004, certified as entitled to 29 days of jail time credit. On March 14, 2005, the petitioner entered the DOCS Shock Incarceration Program (Correction Law Article 26-A and 9 NYCRR Part 8010). On September 15, 2005, following completion of the program, the petitioner was released from DOCS custody parole supervision. He was initially declared delinquent as of October 5, 2005, but restored to parole supervision on November 30, 2005, with 48 days of parole jail time credit. On October 6, 2006, the petitioner was served with a Notice of Violation/Violation of Release Report charging that he violated the conditions of his release in 11 separate respects. The petitioner waived a preliminary parole revocation hearing and a final parole revocation hearing was conducted on December 15, 2006. The petitioner pled guilty to one parole violation charge. At the conclusion of the hearing the ALJ revoked petitioner's parole with a modified delinquency date of September 26, 2006, and imposed a 24-month (shock minimum) delinquent time assessment. The petitioner's administrative appeal was received by the Division of Parole Appeals Unit on January 26, 2007. This proceeding was commenced on March 6, 2007, prior to a decision on the administrative [*2]appeal.

The petitioner does not challenge the revocation of his parole. Rather, he asserts that the application of 9 NYCRR §8010.3 produced the unconstitutional effect of extending his minimum period of incarceration beyond the minimum period imposed by the sentencing court. According to the petitioner, ". . . he completed his minimum sentence on September 13, 2006, 24 months after he was sentenced . . ."^[FN1] Notwithstanding that assertion the petitioner notes in paragraph three of his Reply that DOCS re-calculated his parole eligibility date to be January 28, 2007. The petitioner then asserts that ". . . he is being illegally detained past that minimum sentence date . . ."

The Court agrees with the respondent's preliminary argument that habeas corpus relief is unavailable under the facts and circumstances of this case. The petitioner correctly cites People ex rel Smith v. Mantello, 167 AD2d 912, for the proposition that a habeas corpus proceeding is an appropriate procedural vehicle to challenge a determination revoking parole where the sole basis for continued incarceration is the parole revocation determination. As noted previously, however, the petitioner does not challenge the determination revoking his parole. Even if this Court were to ultimately determine that the petitioner became eligibly for discretionary release to parole supervision upon the expiration of the minimum period of his sentence on September 13, 2006 (or January 28, 2007), such determination would not entitle the petitioner to immediate release from DOCS custody. Rather, pursuant to analogous case law, the petitioner would only be entitled to be considered for discretionary parole release pursuant to the relevant provisions of Executive Law §259-i(2) and 9 NYCRR Part 8002. See People ex rel Alford v. Berbary, 2 AD3d 1337, lv den 2 NY3d 702, cert den 542 US 942, People ex rel Daniels v. Beaver, 303 AD2d 1025, People ex rel Leggett v. Leonardo, 274 AD2d 699 and People ex rel Grimmick v. McGreevy, 141 AD2d 989, app den 73 NY2d 702.

Notwithstanding the determination that habeas corpus relief is unavailable, the Court is authorized to convert a habeas corpus proceeding into a proceeding for judgment pursuant to Article 78 of the CPLR. See People ex rel Gilmore v. New York State Parole Board, 241 AD2d 793. The respondent, however, opposes conversion based upon petitioner's failure to exhaust administrative remedies through the administrative appeals process set forth in 9 NYCRR Part 8006. The petitioner, for his part, maintains that the exhaustion defense is not available since ". . . he only brings to question constitutional and statutory interpretation of the law."

It is a basic tenant of administrative law that one who objects to the actions of an administrative agency must exhaust available administrative appeals prior to seeking judicial relief. See Watergate II Apartments v. Buffalo Sewer Authority, 46 NY2d 52. [*3]The doctrine of exhaustion of administrative remedies ". . . furthers the salutory goals of relieving the courts of the burden of deciding questions entrusted to an agency . . . preventing premature judicial interference with the administrators' efforts to develop, even by some trial and error, a co-ordinated, consistent and legally enforceable scheme of regulation and affording the agency the opportunity, in advance of possible judicial review, to prepare a record reflective of its expertise and judgment.' " Id. at 57 (citations omitted). Despite the forgoing, it is clear that the exhaustion rule need not be followed where an agency's action is challenged as either unconstitutional or wholly beyond its grant of power. Id. This exception to the exhaustion requirement is necessitated by the fact that administrative agencies are not in position to pass upon the constitutionality of legislative or regulatory enactments. See Perrotta v. City of New York, 107 AD2d 320, aff'd 66 NY2d 859. As alluded to previously, the petitioner in the case at bar purports to challenge the constitutionality of the regulatory enactment set forth in 9 NYCRR §8010.3. That provision provides, as follows:

"(a) The shock incarceration program provides an eligible inmate with an unprecedented opportunity to obtain parole release after service of only six months of imprisonment at a shock incarceration facility, regardless of the length of the minimum period of imprisonment imposed by the court. In recognizing the extraordinary benefit conferred upon an eligible inmate by early parole release upon completion of this program, the board believes that the commensurate penalty for violation of one or more of the conditions of parole should be severe. Therefore, when a releasee, under the jurisdiction of the division after having been paroled based upon his or her successful completion of the shock incarceration program, is found to have violated one or more of the conditions of parole in an important respect, the presiding officer shall make a decision in accordance with section 8005.20 of these rules, except that notwithstanding any provision of section 8005.20 to the contrary, if a releasee is not restored to supervision or the Willard Drug Treatment campus program, and the presiding officer directs that the violator be reincarcerated, said period of reincarceration shall be for at least a period of time equal to the minimum period of imprisonment imposed by the court.

(b) In calculating the minimum period of reincarceration of a violator paroled from a shock incarceration facility pursuant to this Part, the six-month period of shock incarceration shall not be deemed to be a part of the minimum period of imprisonment, and the violator shall therefore not receive credit for that time in calculating the minimum period of reincarceration. However, the minimum period of reincarceration shall be reduced by the violator's pre-commitment jail time and any time spent incarcerated in a State correctional facility other than a shock incarceration facility."

The petitioner argues that the above-quoted regulation impermissibly extends a shock incarceration parole violator's minimum period of imprisonment by failing to provide credit for time spent in DOCS custody at the shock incarceration facility. In advancing this argument the Court finds that the petitioner has challenged the facial validity of the regulation rather than its application. Therefore, the Court further finds that petitioner's failure to exhaust administrative remedies does not bar judicial review. [*4]Compare Roberts v. Coughlin, 165 AD2d 964. Nevertheless, for the reasons set forth below, the Court finds no constitutional infirmity in the provisions of 9 NYCRR §8010.3.

It appears to this Court that the petitioner has confused the concept of a minimum period of incarceration of an indeterminate sentence of imprisonment with a delinquent time assessment imposed upon the revocation of parole. The minimum period of an indeterminate sentence of imprisonment must be imposed by a sentencing court pursuant to Penal Law §70.00(1) and (3). For most inmates the expiration of the minimum period of imprisonment marks the point at which he or she becomes eligible for release from DOCS custody to parole supervision pursuant to Penal Law §70.40(1)(a). For inmates like the petitioner, however, who successfully complete the DOCS shock incarceration program, initial parole eligibility is not necessarily based upon the expiration of his or her minimum period of imprisonment. In this regard Penal Law §70.40(1)(a) provides, in relevant part, as follows: "A person who is serving one or more than one indeterminate sentence of imprisonment may be paroled from the institution in which he is confined at any time after the expiration of the minimum or the aggregate minimum period of imprisonment of the sentence or sentences or after the successful completion of a shock incarceration program, as defined in article twenty-six-A of the correction law . . . whichever is sooner." Thus, following completion of the shock incarceration program, the petitioner was released to parole supervision on September 15, 2005 - almost one year earlier than he would have been eligible for parole had he not participated in the program.

Under the relevant statutory/regulatory scheme when an inmate is released to parole supervision but subsequently returned to DOCS custody as a parole violator, the timing of his or her eligibility for re-release to parole supervision is generally based upon the expiration of the delinquent time assessment imposed by the Administrative Law Judge upon conclusion of the final parole revocation hearing. See 9 NYCRR §8002.6(a), which defines a "time assessment" as ". . . a period of time which is fixed as a result of a final parole revocation hearing and which determines the date by which time the parole violator will be eligible for re-release." In the case at bar the petitioner's delinquent time assessment was imposed by the ALJ at his final parole revocation hearing in accordance with the previously-quoted provisions of 9 NYCRR §8010.3.

The Court find no basis to conclude that the minimum period of incarceration imposed by the sentencing judge on September 13, 2004, has been unconstitutionally extended by administrative action. Petitioner's minimum period of incarceration has always been two years and it is not disputed that the petitioner has, in fact, completed the minimum period of his incarceration. As a reincarcerated parole violator, however, the petitioner's eligibility for re-release to parole supervision is now contingent on the expiration of the delinquent time assessment imposed by the ALJ at his final hearing. Neither the statutory/regulatory framework nor constitutional analysis supports the position effectively espoused by the petitioner that even after his early parole release, following completion of the shock incarceration program, and subsequent return to DOCS custody as a parole violator, the expiration of his minimum period of imprisonment still triggers eligibility for parole release regardless of the delinquent time assessment imposed at the final hearing. Nothing in the record before this Court suggests, moreover, that the respondent seeks to retain the petitioner in DOCS custody [*5]beyond the maximum term of the September 13, 2004, sentence, nor is there any suggestion that the time spent by the petitioner in the shock incarceration program has not been credited against that maximum term.

Based upon all of the above, it is, therefore, the decision of the Court and it is hereby

ADJUDGED, that the petition is dismissed.

Dated:August 15, 2007 at

Indian Lake, New York

S. Peter Feldstein

Acting Supreme Court Justice