        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1102
KAH 12-01771
PRESENT: FAHEY, J.P., PERADOTTO, LINDLEY, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK EX REL.
WILLIE WILLIAMS, PETITIONER-APPELLANT,

                    V                             MEMORANDUM AND ORDER

ROBERT A. KIRKPATRICK, SUPERINTENDENT, WENDE
CORRECTIONAL FACILITY, AND ANDREA W. EVANS,
CHAIRWOMAN, NEW YORK STATE DIVISION OF PAROLE,
RESPONDENTS-RESPONDENTS.


ALAN BIRNHOLZ, EAST AMHERST, FOR PETITIONER-APPELLANT.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (OWEN DEMUTH OF
COUNSEL), FOR RESPONDENTS-RESPONDENTS.


     Appeal from a judgment (denominated memorandum and order) of the
Supreme Court, Erie County (John L. Michalski, A.J.), dated June 12,
2012 in a proceeding pursuant to CPLR article 78. The judgment denied
the petition.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.

     Memorandum: Petitioner commenced this habeas corpus proceeding
alleging that he is entitled to immediate release from prison pursuant
to Executive Law former § 259-j (3-a), which has since been replaced
by Correction Law § 205 (4). According to petitioner, his sentence of
20 years to life should be terminated because, from 1994 to 1997, he
had “three years of unrevoked presumptive release or parole” (§ 205
[4]). We reject that contention. As a threshold matter, we note that
section 205 (4) applies only to prisoners serving sentences for
qualifying drug felonies, and defendant is serving a sentence for
attempted murder in the second degree. In any event, petitioner is
not entitled to relief under the statute because he violated parole
several times after his three years of unrevoked release and before
the effective date of Executive Law § 259-j (3-a) (see Matter of
Rosario v New York State Div. of Parole, 84 AD3d 1665, 1666; Matter of
Murphy v Ewald, 77 AD3d 778, 779, lv denied 16 NY3d 701).

     To the extent that the petition further alleged that petitioner
was deprived of a final revocation hearing when his parole was revoked
in 2009 upon his conviction of a new drug felony, we conclude that
Supreme Court properly converted the habeas corpus petition to a CPLR
article 78 petition and then denied the petition. “Upon petitioner’s
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                                                        KAH 12-01771

conviction of a felony committed while under parole supervision,
petitioner’s parole was revoked by operation of law” (People ex rel.
Stevenson v Beaver, 309 AD2d 1171, 1172, lv denied 1 NY3d 506). Thus,
contrary to petitioner’s contention, a parole revocation hearing was
not required (see Executive Law § 259-i [3] [d] [iii]; People ex rel.
Harris v Sullivan, 74 NY2d 305, 308; People ex rel. Ward v Russi, 219
AD2d 862, 862, lv denied 87 NY2d 803).




Entered:   November 8, 2013                    Frances E. Cafarell
                                               Clerk of the Court
