PRESENT: HONORABLE MARK H. DADD

Acting Supreme Court Justice

STATE OF NEW YORK

SUPREME COURT : COUNTY OF WYOMING

__________________________________________

The People of the State of New York

ex rel VICTOR RIVERA, #88-A-5706,

Relator

v.

Index No. 19,045

PAUL LEVINE, Superintendent,

Wyoming Correctional Facility, Respondent

__________________________________________

For the Relator

WYOMING COUNTY-ATTICA LEGAL

AID BUREAU, INC.

Norman P. Effman, Director

14 Main Street

Attica, New York 14011

For the Respondents

ELIOT SPITZER, Attorney General

by Ann C. Williams

Assistant Attorney General

Statler Towers, 4th Floor

107 Delaware Avenue

Buffalo, New York 14202

MEMORANDUM AND JUDGMENT

By petition for a writ of habeas corpus sworn to on April 27, 2000, Victor Rivera challenges the legality of his confinement pursuant to a parole revocation hearing conducted on September 14, 1999. Relator appeared with counsel assigned by a writ of habeas corpus dated June 5, 2000 and contended that he should be released from custody and restored to parole supervision. Respondent requests that relief be denied upon the affirmation and return of Ann C. Williams, Assistant Attorney General, dated July&nbsp20, 2000.

Respondent initially contends that this matter is inappropriate for habeas corpus relief and that the petition is moot because the relator is scheduled for parole release on August 12, 2000. The Court does not agree with these contentions. Relator

alleges that the parole revocation decision was not supported by a preponderance of the evidence. Thus, he might be entitled to immediate release if he established such a claim (see People ex rel Saafir v. Mantello, 163 A.D.2d 824 [1990]). Furthermore, this claim would not be moot until the relator is actually released to parole.

In any event, relator is not entitled to relief on the merits. His guilty plea to one parole violation charge provided sufficient evidence for the revocation of his parole. His objections to the time assessment in this matter would be moot upon his release. Furthermore, there is no merit to his claim that application of guidelines set forth in 9 NYCRR 8005.20 violated his constitutional rights under the Ex Post Facto Clause of the United States Constitution (see People ex rel Santoro v. Hollins, __ A.D.2d __, decision filed by the Appellate Division for the Fourth Department, dated June 16, 2000; see also People ex rel Shepard v. David, Supreme Court of Wyoming County, Index No. 18,636, Memorandum and Judgment dated June 1, 1999, annexed).

NOW, THEREFORE, it is hereby

ORDERED that the petition is denied and the writ of habeas corpus is dismissed.

DATED: August 9, 2000

Warsaw, New York



Acting Supreme Court Justice

Memorandum and Judgment

Index No. 19,045