This proceeding pursuant to CPLR article 70 originated by the petition of Garfield Bentley, Jr., filed in the Washington County Clerk's office on March 14, 2024, with an Order to Show Cause entered on March 27, 2024, an Amended Order to Show Cause entered on May 2, 2024 and a Second Amended Order to Show Cause entered on May 24, 2024. Petitioner, who is an inmate at the Coxsackie Correctional Facility, contends that he is entitled to immediate release.^[FN1]

On October 5, 2017 petitioner was sentenced by Orange County Court as a second felony offender to a 9-year determinate term of incarceration followed by a 5-year term of post-release supervision for one count of Burglary in the Second Degree. He was also sentenced to three indeterminate terms of incarceration of 2 to 4 years for convictions of three counts of Criminal Contempt in the First-Degree which sentences run concurrently with each other and concurrent [*2]with the determinate 9-year sentence. ^[FN2] On October 24, 2017 petitioner was received by the New York State Department of Corrections and Community Supervision (DOCCS). Petitioner was credited with 387 days of jail time from September 27, 2016 through October 11, 2016 and October 17, 2016 through October 24, 2017.

Petitioner alleges that he is being held unlawfully due to his sentence and commitment being miscalculated, inferring he is not being credited with good time thereby creating an illegal time computation.^[FN3] In support of his contention petitioner attaches; (1) a copy of his "Reception/Classification System" dated October 24, 2017 which reflects a maximum expiration date of October 1, 2025 and the potential for fifteen months and four days of good time which would result in a parole eligibility and conditional release date of June 6, 2024; (2) a February 7, 2024 memo to petitioner from DOCCS stating:

"Please be advised that your time computation has been checked and is accurate with the information the court has provided in your commitment. You were sentenced to a 9 year determinate term with a concurrent 2-4 indeterminate term. It appears this has been explained to you at other facilities and I note a response from Sentencing Review from September 7, 2018 where you were informed that DOCCS is not authorized to change your sentence imposed by the court";

"Pursuant to your inquiry, the calculation of your release dates has been reviewed. Please be advised that such calculation complies with the requirements of Penal Law Article 70 and Correction Law Article 24.";

and (4) one page of a letter dated April 1, 2024 from Prisoner's Legal Services of New York advising petitioner that if DOCCS wants him to participate in a program and he does not complete it, that could result in loss of good time by the [t]ime [a]llowance [c]ommittee. This letter also cites to Correction Law 137(6)(m)(iv) which states:

"When an incarcerated person is discharged from a residential rehabilitation unit, any remaining time to serve on any underlying disciplinary sanction shall be dismissed. If an incarcerated person substantially completes his or her rehabilitation plan, he or she shall have any associated loss of good time restored upon discharge from the unit."

Respondent moves to dismiss the petition asserting petitioner has failed to set forth facts which entitle him to immediate release because "habeas does not lie to challenge the loss of good time . . . or to challenge a parole release decision". Respondent further submits DOCCS is conclusively bound by the most recently issued commitment from Orange County Court on October 5, 2017. In support of its position, respondent provides the Affirmation of Jarrod Sanford, Associate Counsel in DOCCS' Office of Sentencing Review, detailing DOCCS' calculation of petitioner's sentence.

"Inasmuch as the amount of good time granted to a prisoner is not a right (see People ex rel. Miranda v Kuhlmann, 127 AD2d 924, 925, 511 NYS2d 981 [1987], lv denied 69 NY2d 612, 511 NE2d 86, 517 NYS2d 1027 [1987]) and 'the determination to withhold good time did not render petitioner's continued confinement pursuant to his original sentence unlawful' (Matter of Doolen v Goord, 277 AD2d 624, 624-625, 718 NYS2d 221 [2000]), habeas corpus relief is unavailable to challenge a determination of the time allowance committee (see id.; People ex rel. Wilson v Hanslmaier, 232 AD2d 702, 648 NYS2d 52 [1996]; People ex rel. Mabery v Leonardo, 177 AD2d 766, 766-767, 575 NYS2d 745 [1991], lv denied 79 NY2d 753, 589 NE2d 1263, 581 NYS2d 281 [1992]; People ex rel. Miranda v Kuhlmann, supra at 925). Moreover, the expiration of petitioner's sentence is the point in time at which the right to release would accrue, not the conditional release date (see People ex rel. Mabery v Leonardo, supra at 766-767 as cited in People ex rel. Richardson v West, 24 AD3d 996, 997 [3d Dept 2005])

Here, even though petitioner's conditional release date, based upon his eligibility for good time, was determined to be June 24, 2024, his maximum expiration date is not until October 1, 2025. Therefore, any right petitioner has to release, has not accrued. Moreover, "since good time is not a matter of right, a prisoner remains lawfully imprisoned such that habeas corpus is not a proper vehicle to challenge the determination of the time allowance committee" and to the extent the petition is void of any other allegation challenging the calculation of his sentence, the petition must be dismissed.^[FN4] (see People ex rel. Miranda v Kuhlmann, 127 AD2d 924, 924 [3d Dept 1987])

Therefore, having considered the Petition with exhibits attached thereto, verified March 5, 2024; the Return and Affirmation of Alexander Powhida, Esq. with exhibits attached thereto, dated June 28, 2024; and the correspondence of Garfield Bentley dated April 3, 2024, April 9, 2024, May 3, 2024, June 4, 2024 and July 11, 2024, it is hereby

ORDERED AND ADJUDGED that the petition is dismissed.