This matter comes before the Court on Petitioner's petition for habeas corpus. After reviewing the submissions by Petitioner, his attorney, and Respondents, this Court must deny the within petition.

According to the record before this Court, in 1997, Petitioner was sentenced in Supreme Court, New York County, (convicted by guilty plea) for Sexual Abuse in the First Degree (PL §130.65). The crime involved Petitioner and two other men forcibly raping and sodomizing a 37-year old victim. Petitioner was sentenced on January 31, 1997, to two to four years in state prison. Later that same year, Petitioner was sentenced to a determinate term of six years in state prison for Attempted Robbery in the First Degree. Petitioner was in possession of a loaded firearm during the commission of that crime. In February, 2005, Petitioner was convicted of Criminal Possession of a Weapon in the Third Degree, for which he was sentenced to a determinate term of five years in state prison, plus five years of post-release supervision.

For the Sexual Abuse conviction, Petitioner was designated as a Level III Sex Offender. In 2009, Petitioner was released from state prison to post-release supervision. On November 21, 2013, Petitioner was charged with violating the conditions of his post-release supervision. In December, 2013, Petitioner pleaded guilty to Failure to Report in exchange for a promise that he would successfully complete a 90-day Department of Corrections and Community Supervision (hereinafter, "DOCCS") treatment program. Upon successful completion of that program, he was to be returned back to post-release supervision.

It is undisputed that Petitioner completed the 90-day DOCCS treatment program on April 18, 2014. Upon completion, however, Petitioner was ordered to continue his post-release supervision at Woodbourne Residential Treatment Facility (hereinafter, "RTF"), because he did not have an approved residence for community release as a Level III sex offender, and was therefore considered undomiciled. Petitioner's maximum expiration (ME) date was September 25, 2014.

Pursuant to Executive Law §259-c(14),

Penal Law Section 220.00 states in pertinent part,

Respondents argue that the placement of inmates eligible for post-release supervision at residential treatment facilities, like the one at Woodbourne, is authorized by Correction Law §73(10), which states, "The commissioner is authorized to use any residential treatment facility as a residence for persons who are on community supervision. Persons who reside in such a facility shall be subject to conditions of community supervision imposed by the board." Respondents argue that Assistant Commissioner Anne Marie McGrath determined that Petitioner should be placed in a residential treatment facility because there was, and to date continues to be, no viable alternative. Respondents argue that the residential treatment facility at Woodbourne is authorized, pursuant to 7 NYCRR §100.50, for the placement of inmates who are released, but in need of services to find appropriate housing. This Court agrees.

Respondents' submissions substantiate their claim that Woodbourne RTF has a call out procedure to facilitate finding a proper residence for Petitioner so he may be released. Petitioner meets with DOCCS employees every other week to facilitate locating a proper residence. Woodbourne offers educational classes, vocational training opportunities, various programs, sex offender counseling, industrial training and transitional services. Petitioner currently works as a porter at the facility.

As Respondents correctly point out, Woodbourne RTF has been designated as a residential treatment facility. 7 NYCRR §100.50. Petitioner's submissions and arguments to this Court have failed to show that Petitioner's placement at Woodbourne RTF was inappropriate. A review of the record supports Respondents' argument that the placement was necessary and appropriate considering Petitioner's classification as a Level III sex offender and as a condition of his post-release supervision. See People v. Catu, 4 NY3d 242 [2005]; People v. Melio, 304 AD2d 247 [2nd Dept. 2003]. Petitioner's reliance on People ex rel. O'Connor v. Berbary, 195 Misc 2d 36 [Sup. Ct. Erie Cty. 2002] is misplaced. In that case, the petitioner had not been transferred to an RTF; nonetheless, the Court recognized the validity and lawfulness of the statutory authorization for placement, as a condition of post-release supervision, in an approved RTF for a period of not more than six months. See PL §70.45(3); O'Connor v. Berbary, 195 Misc 3d at 38. Petitioner's reliance on People ex rel. Davis v. Superintendent of Willard Drug Treatment Campus, 11 Misc 3d 1072(A) [Sup. Ct. New York Cty. 2006], is also misplaced, as that case dealt with an unjustifiable delay in the transfer of the petitioner to the Willard Drug [*3]Treatment facility. Petitioner, herein, is not entitled to habeas corpus relief because he is not entitled to immediate release, and is housed at an approved RTF. See People v. Griffin, 118 AD3d 1174 [3rd Dept. 2014]; People ex rel. DeFlumer v. Strack, 212 AD2d 555 [2nd Dept. 1995].

Based upon the above, it is

ORDERED that Petitioner's application for habeas corpus is denied.This shall constitute the Decision and Order of this Court.

Monticello, New York

______________________________

Hon. Frank J. LaBuda

Acting Justice Supreme Court