104 A.D.2d 680 | N.Y. App. Div. | 1984
— Appeal from a judgment of the Supreme Court at Special Term (Kahn, J.), entered July 22, 1983 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to annul a determination of the New York State Board of Parole declaring petitioner to be a parole violator, revoking his parole, and extending the maximum expiration date of his paroled supervision.
The question presented is whether CPLR 205 (subd [a]) allows petitioner to maintain the instant CPLR article 78 proceeding, which would otherwise be time barred under the provisions of CPLR 217. We conclude that CPLR 205 (subd [a]) does not permit the maintenance of this proceeding. The judgment entered at Special Term dismissing the petition herein should therefore be affirmed.
Also on December 8,1980, petitioner secured a writ of habeas corpus alleging, inter alia, that he had been denied his right to a prompt parole revocation hearing. On December 23, 1980, Special Term ruled against petitioner, holding that petitioner failed to rebut the presumption that a parolee incarcerated outside of New York State is not within the convenience and practical control of respondent. The case of People ex rel. Gonzales v Dalsheim (52 NY2d 9), which had been issued the previous day, was then brought to Special Term’s attention. After reargument, Special Term adhered to its earlier decision, holding that People ex rel. Gonzales v Dalsheim (supra) was not to be applied retroactively where the parole violator was taken into custody by respondent before the issuance of the Court of Appeals decision. The Second Department affirmed (People ex rel. Julio v Walters, 88 AD2d 259)
Judgment affirmed, without costs. Main, J. P., Mikoll, Yesawich, Jr., Levine and Harvey, JJ., concur.
The Second Department has apparently changed its mind on the retro-activity question (see People ex rel. Tanner v Walters, 89 AD2d 989, 990).