                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: December 17, 2015                    520859
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK ex rel. SHALIEK
   CARTER,
                    Appellant,
      v                                      MEMORANDUM AND ORDER

BRANDON J. SMITH, as
   Superintendent of Greene
   Correctional Facility,
                    Respondent.
________________________________


Calendar Date:    October 27, 2015

Before:    Peters, P.J., Lahtinen, Rose and Lynch, JJ.

                              __________


        Shaliek Carter, Coxsackie, appellant pro se.

      Eric T. Schneiderman, Attorney General, Albany (Owen Demuth
of counsel), for respondent.

                              __________


      Appeal from a judgment of the Supreme Court (Elliott, J.),
entered March 18, 2015 in Greene County, which dismissed
petitioner's application for a writ of habeas corpus, in a
proceeding pursuant to CPLR article 70, without a hearing.

      Petitioner was sentenced to 3½ years in prison following
his 2002 conviction of robbery in the second degree.1 In 2007,


    1
        Petitioner was resentenced in 2012 to the same 3½-year
prison term but the five-year period of postrelease supervision
that was administratively imposed by the Department of
Corrections and Community Supervision was removed.
                              -2-                  520859

petitioner was sentenced to a prison term of 13 years and five
years of postrelease supervision following his conviction of
attempted robbery in the first degree. Petitioner commenced this
CPLR article 70 proceeding for habeas corpus relief asserting
that, because he served three years of an illegally imposed
period of postrelease supervision in connection with the 2002
conviction, his due process rights were violated and he is
entitled to immediate release. Supreme Court dismissed the
petition without a hearing and this appeal ensued.

      We affirm. "Entitlement to immediate release from prison,
which does not occur until the expiration of an inmate's
sentence, is a prerequisite for habeas corpus relief" (People ex
rel. Justice v Racette, 111 AD3d 1041, 1042 [2013], lv denied 22
NY3d 861 [2014] [internal quotation marks and citations omitted];
see People ex rel. Porter v Napoli, 56 AD3d 830, 831 [2008]).
Petitioner is currently serving the unexpired term of his 2007
sentence, which is completely unrelated to his 2002 sentence. As
such, petitioner would not be entitled to immediate release and,
therefore, a writ of habeas corpus cannot be granted (see People
ex rel. Vickery v Griffin, 125 AD3d 1018, 1019 [2015], lv denied
25 NY3d 908 [2015]; People ex rel. Justice v Racette, 111 AD3d
1041, 1042 [2013], lv denied 22 NY3d 861 [2014]).

     Peters, P.J., Lahtinen, Rose and Lynch, JJ., concur.


     ORDERED that the judgment is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
