Branch v. Scully , 511 N.Y.S.2d 76 ( 1987 )

In a proceeding pursuant to CPLR article 78 inter alia, to compel the respondent Superintendent of the Green Haven Correctional Facility to turn the petitioner over to the Pennsylvania authorities, the petitioner appeals from a judgment of the Supreme Court, Dutchess County (Jiudice, J.), dated November 30, 1984, which, after a hearing, dismissed the proceeding.

Ordered that the judgment is affirmed, without costs or disbursements.

The petitioner, while on parole on a sentence being served in Pennsylvania, committed a crime in New York and was sentenced to a term of imprisonment of 6 to 12 years to run concurrently with the Pennsylvania sentence. The sentencing court ordered that the respondent transfer custody of the petitioner to the Pennsylvania authorities. Pennsylvania declined to accept custody of the petitioner until such time as he was released or paroled from his sentence in New York. The petitioner then commenced this proceeding to compel the respondent to transfer him to the Pennsylvania authorities.

The petitioner has failed to state a claim for relief against the State of New York and its agents. He can challenge Pennsylvania’s refusal to take him into custody only in the courts of Pennsylvania (Executive Law § 259-m [1]). Mollen, P. J., Bracken, Lawrence, Kooper and Sullivan, JJ., concur.