Relator seeks Writ of Habeas Corpus seeking specific performance of his plea agreement in Queens County in 1996 and to be released from state prison.

Respondent submits Answer and Return.

Relator submits reply.

In 1996 relator plea in accordance with a plea agreement in Queens County. At the time relator was a second felony offender who was on parole from a previous undischarged sentence.

Relator's original sentence was eight and one-third to twenty five years.

In 1996 relator was sentenced pursuant to his plea agreement to a indeterminate term of prison of four and one-half to nine years and an indeterminate term of eight and one half years to be run concurrently to each other. It was agreed by the Judge that

at the conclusion of the eight and one-half year determinate sentence that relator should be paroled and he would write a letter to the parole board to that effect.

Relator saw the parole board in 2008. He was denied parole and held for an additional twenty four months. He filed a notice of appeal to the administrative appeal unit but did not perfect his appeal.

Relator can not litigate the parole denial in 2008, by article 78 proceeding, because he failed to exhaust his administrative remedies. Matter of Erdheim v Travis, 7 AD3d 876 (3rd Dept., 2004).

Likewise, relator cannot not litigate a discretionary parole denial by habeas corpus. People ex rel John Land v State of New York, 54 AD3d 1113 (3rd Dept., 2008).

The proper vehicle in this matter is a 440 motion returnable in the court in which the relator was sentenced in Queens County.

People ex rel DeCicco v LeFevre, 108 AD2d 995 (3rd Dept., 1985).

The proper issue herein is not whether the parole board in denying parole in 2008 disregarded relator's sentencing commitment in 1996 to parole him afer his eight and one-half determinate sentence as argued by relator but rather whether relator's undischarged eight and one-third to twenty five year sentence must be run consecutive to his 1996 sentence because the sentencing court was silent on that issue.

People ex rel Gill v Greene, 48 AD3d 1003 (3rd Dept., 2008) now applies.

The decision by the Appellate Division, Third Department in

People ex rel Gill v Greene, supra held that when a court sentences a defendant pursuant to Penal Law §70.25, under circumstances as are present herein, but fails to run defendant's sentence consecutively to any undischarged prison term that the New York State Department of Corrections (DOCS) can not administratively run such sentences consecutively as that is

strictly a judicial function.

However, The Court of Appeals reversed People ex rel Gill v Greene, supra on February 12, 2009. People ex rel Gill v Greene, 2009 Slip Op 1067. The Court of Appeals held that the mandatory requirement that any undischarged prior prison sentence must be run [*2]consecutively to a new sentence is automatic by operation of law.

Since Sullivan County is not the proper venue for a 440 motion herein this Court declines to convert the instant matter.

Based upon the above, it is

ORDERED, that the application for a Writ of Habeas Corpus is denied and dismissed.

This shall constitute the Decision and Order of this Court.

DATED: January 6, 2011

Monticello, NY 12701

_______________________________

Hon. Frank J. LaBuda

Acting Supreme Court Judge