| People ex rel. Pons v Keyser |
| 2021 NY Slip Op 02046 |
| Decided on April 1, 2021 |
| Appellate Division, Third Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided and Entered: April 1, 2021
532003
v
William Keyser, as Superintendent of Sullivan Correctional Facility, Respondent.
Calendar Date: March 5, 2021
Before: Garry, P.J., Lynch, Clark, Pritzker and Reynolds Fitzgerald, JJ.
Conrado Pons, Fallsburg, appellant pro se.
Letitia James, Attorney General, Albany (Frank Brady of counsel), for respondent.
Appeal from an order of the Supreme Court (Schick, J.), entered September 2, 2020 in Sullivan County, which denied petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.
Petitioner is an inmate at Sullivan Correctional Facility (hereinafter SCF) serving a lengthy prison sentence for multiple murder convictions, and is not eligible for parole until 2035 (People v Pons, 174 AD2d 422 [1991], lv denied 78 NY2d 1014 [1991]; People v Pons, 159 AD2d 471 [1990], lv denied 76 NY2d 741 [1990]). He filed an application for a writ of habeas corpus in July 2020, seeking his immediate release due to the presence of COVID-19 in SCF, indicating that he had contracted COVID-19.[FN1] Respondent moved to dismiss, submitting an affidavit detailing the protocols and preventative policies in place to address the spread of COVID-19 at SCF as of August 11, 2020. Supreme Court denied the application on the merits, based upon People ex rel. Carroll v Keyser (184 AD3d 189, 192-193 [2020]). Petitioner appeals.
We have reviewed the individual facts unique to petitioner's circumstances, i.e., relative to his age and physical condition. Upon consideration, we find that petitioner has failed to meet his burden of demonstrating that his detention at SCF was illegal or unconstitutional (see CPLR 7002 [a]; 7010 [a]; People ex rel. Carroll v Keyser, 184 AD3d at 192-193; People ex rel. Ferro v Brann, 183 AD3d 758, 758 [2020]). The basis of this determination is set forth in People ex rel. Figueroa v Keyser (___ AD3d ___ [decided herewith]) relative to both petitioner's Eighth Amendment claim and his substantive due process claim, and we adopt that analysis here. Petitioner's remaining claims have been examined and none establishes the illegality of his incarceration or his entitlement to immediate release (see People ex rel. Brown v New York State Div. of Parole, 70 NY2d 391, 398 [1987]; People ex rel. Kaplan v Commissioner of Correction of City of N.Y., 60 NY2d 648, 649 [1983]). Accordingly, we find that Supreme Court properly denied the application.
Garry, P.J., Lynch, Clark, Pritzker and Reynolds Fitzgerald, JJ., concur.
ORDERED that the order is affirmed, without costs.
Footnote 1: Petitioner did not allege that he had not fully recovered or that he did not receive adequate medical care.