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MATTER OF HAWKINS v. COUGHLIN

132 A.D.2d 381 (1987)

In the Matter of Joseph Hawkins, Also Known as Joseph Davis, Appellant, v. Thomas A. Coughlin, III, as Commissioner of Correctional Services, et al., Respondents

Appellate Division of the Supreme Court of the State of New York, Second Department.

December 28, 1987

Attorney(s) appearing for the Case

Philip L. Weinstein (Lynn W. L. Fahey of counsel), for appellant.

Robert Abrams, Attorney-General (Gerald J. Ryan and Burton Herman of counsel), for State respondents.

Peter L. Zimroth, Corporation Counsel (Leonard Koerner and Pamela Seider Dolgow of counsel), for New York City respondents.

NIEHOFF, J., concurs with SULLIVAN, J.; MANGANO, J. P., concurs in a separate opinion; HARWOOD, J., dissents and votes to reverse the judgment, on the law, and to grant the petition, with an opinion in which BROWN, J., concurs.

SULLIVAN, J.

On this appeal we are called upon to determine whether a parolee is in custody so as to trigger the ameliorative provisions of the last paragraph of Penal Law § 70.30 (3). We hold that this paragraph is only applicable when a defendant is in actual custody. Accordingly, the Supreme Court, Queens County, properly dismissed the proceeding (132 Misc.2d 45

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