At a Special term, Part 37 of the Supreme Court of

the State of New York, held in and for the County of

Nassau, on the of September, 2006

PRESENT:

HON.
------------------------------------------------------------------X
THE PEOPLE OF THE STATE OF NEW YORK
ex rel. ERIC GREEN, DOB 09/25/1963

Petitioner, Petition for a Writ

of Habeas Corpus
- against -

EDWARD REILLY, Sheriff of Nassau County,

Respondent.
-----------------------------------------------------------------X

THE PEOPLE OF THE STATE OF NEW YORK, THE SHERIFF OF NASSAU

COUNTY, THE WARDEN OF THE NASSAU COUNTY CORRECTIONAL CENTER, OR ANY

OTHER PERSON HAVING CUSTODY OF THE PERSON OF ERIC GREEN.

WE COMMAND YOU, that you have the body of ERIC GREEN by you imprisoned and

detained, together with the time and cause of such imprisonment and detention, by whatever name

ERIC GREEN shall be called or charged before the Supreme Court of the state of New York,

Special Term, Part II, Mineola, New York on the __ Day of SEPTEMBER, 2006 at 9:30 o'clock

in the forenoon or as soon thereafter as the matter can be heard to do and receive what then and

there shall be considered concerning the said ERIC GREEN and have you then and there this writ.

Sufficient reason appearing therefore, personal service of this writ upon the Sheriff of

Nassau County at the Office of the Sheriff, 240 Old Country Road, Mineola, New York, and upon

the Office of the New York State Attorney General’s Office, 200 Old Country Road, Suite 460,
Mineola, New York at or before o'clock in the noon on the ___ day of SEPTEMBER 2006 shall

be deemed due and sufficient service.

WITNESS, HON. ______________________ of the Justices of the Supreme Court of the

State of New York, the ___ day of SEPTEMBER 2006. The within writ is hereby allowed this

_____ day of SEPTEMBER 2006.

_______________________________
JUSTICE OF THE SUPREME COURT
OF THE STATE OF NEW YORK
STATE OF NEW YORK
COUNTY OF NASSAU: SUPREME COURT
-----------------------------------------------------------------x
THE PEOPLE OF THE STATE OF NEW YORK
ex rel. ERIC GREEN,
VERIFIED PETITION
Relator,
- against -

EDWARD REILLY, Sheriff of Nassau County,

Respondent.
----------------------------------------------------------------x
STATE OF NEW YORK)
) ss.:
COUNTY OF NASSAU )

DANIEL SCHNEIDER, being duly sworn deposes and says:

1. I am an attorney, admitted to practice before the Courts of the State of New York and am

associated with Kent V. Moston, Attorney in Chief, Nassau County Legal Aid Society,

counsel assigned to represent the Petitioner herein and is fully familiar with the facts of

this case.

FACTS

2. Petitioner, ERIC GREEN (Petitioner), is presently detained at the Nassau County

Correctional Facility under the custody of the Sheriff, Edward Reilly. He was taken into

custody on July 11, 2006 by his parole officer for technical violations to his parole.

3. On August 10, 2006, Petitioner, at his final hearing for his violation of parole, he pled

guilty to not reporting to his parole officer when he should have. He received a time

assessment of time served plus three months. At the hearing, he preserved the right to

collaterally challenge his parole status through either a writ of habeas corpus or an CPLR

Article 78 petition, which he now makes.

4. Petitioner was originally paroled on September 9, 2003. He had served an indeterminate

sentence of 2.5-5 years for violating Penal Law § 220.31, criminal sale of a controlled

substance in the fifth degree (CSCS-5). See Attached Exhibit A, p.7 Violation of Release

Report (“Violation”) prepared by P.O. Stella on June 26, 2006.

5. Petitioner was violated on parole one other time with a delinquency date of October 3,

2005. See Exhibit A, p.6. He had been on unrevoked parole for two years and one month.

For that violation, on February 2, 2006, Petitioner was remanded to Willard DTC Program.

6. Petitioner is being illegally detained because under Executive Law 259-j(3-a), see Attached

Exhibit B, the division of parole “must grant termination of sentence after two years of

unrevoked parole to a person serving an indeterminate sentence for any other felony

offense [other than a Class A] defined in article two hundred twenty or two hundred

twenty-one of the penal law.” Id. (Emphasis added).1

7. Petitioner was convicted of an applicable charge and went more than two years without

having his parole revoked. Thus his sentence should have been terminated on September

9, 2005, before his previous parole violation.

8. He is not only being held on a present parole hold that should not exist, but he was

sentenced to and completed the Willard DTC Program for a violation of the same parole

term that should have been terminated. Therefore, his hold based on a violation of parole

is illegal. For this reason and the fact that petitioner has no additional holds on him, he

should be released.

1
It should be noted that in the event that this court deems that this matter is bore properly brought as a mandamus to
compel pursuant to CPLR Art. 78, the petitioner would not oppose its conversion.
ARGUMENT

I. The Petitioner should be released because parole term should have been terminated
automatically, pursuant to Executive Law 259-j(3-a), after having served two years on parole
with being violated terminated and therefore any hold based on that sentence is unlawful.

9. Petitioner was released from prison on September 9, 2003. See Exhibit A, p.7, Certificate

of Release to Parole Supervision. He was not delinquent on his parole until October 3,

2005. See Id. at p. 6. The parole delinquency date was two years and one month after

Petitioner was released.

10. Executive Law 259-j(3-a) mandates a sentence, pursuant to Penal Law Article 220, must

be terminated if the releasee is on unrevoked parole for a minimum period of two years.

11. In this case, Petitioner clearly was on parole for more than two years without having that

period interrupted by a revocation. He was convicted of Penal Law § 220.06, a section that

definitely falls into the jurisdiction of the Executive Law.

12. That Petitioner received and completed a sentence for a previous violation must not matter,

as the merit release under Executive Law 259-j(3-a) is automatic. All that says is that

Petitioner completed an unlawful time assessment. By doing that, he did not consent to

continued parole supervision.

13. For these reasons, under the law, petitioner’s sentence must have been terminated on or

about September 9, 2005, when he reached his two year anniversary of being released from

prison. As a result of this, he should no longer have been on parole and the fact that he is

being held on a violation of that parole amounts to an illegal detention, as he is being held

on a parole warrant for a parole term that does not exist. Therefore, petitioner must be

released immediately.
 WHEREFORE, it is respectfully requested that a writ of habeas corpus be issued directing

Edward Reilly, or whoever has custody of ERIC GREEN, to bring and produce the Petitioner

before this Court for a hearing and determination concerning the detention of said relator and to

show cause why he shall not be released.

_________________________
DANIEL SCHNEIDER, ESQ.

Dated: September 5, 2006

Hempstead, NY
 At a Special term, Part II of the Supreme
Court of the State of New York, held in and
for the County of Nassau, on the of
September, 2006

P R E S E N T:

----------------------------------------------------------------x
THE PEOPLE OF THE STATE OF NEW YORK
ex rel. ERIC GREEN,
Relator,

- against -
JUDGMENT

EDWARD REILLY, Sheriff of Nassau County,

Respondent.
---------------------------------------------------------------x

On reading and filing the petition of ERIC GREEN, and on the Writ of Habeas Corpus

allowed on said petition and on SEPTEMBER , 2006, ERIC GREEN, having appeared by

his attorney, KENT V. MOSTON, by in support of said petition and writ and the

District Attorney by and deliberations having been had thereon.

It is on the motion of KENT V. MOSTON, ESQ., an attorney assigned for the Relator,

ORDERED, ADJUDGED AND DECREED, that the Relator, ERIC GREEN, be released from

the Nassau County Correctional Center.

ENTER

JUDGE OF SUPREME COURT

------------------------------------------------------------------X
THE PEOPLE OF THE STATE OF NEW YORK
ex rel. ERIC GREEN,

Petitioner,
VERIFICATION

- against -

EDWARD REILLY, Sheriff of Nassau County,

Respondent.
-----------------------------------------------------------------X

STATE OF NEW YORK)

) ss.:
COUNTY OF NASSAU )

DANIEL SCHNEIDER, being duly sworn deposes and says:

1. Affiant is an attorney and has read the foregoing petition and knows the contents thereof

to be true, except as to matters therein stated to be on information and belief, and as to those

matters, deponent verily believes them to be true.

2. This verification is made by the attorney and not by the relator himself because all of

the materials allegations contained in the petition are within his personal knowledge.

_____________________
DANIEL SCHNEIDER, ESQ.

Sworn to before me this

day of AUGUST, 2006