
    The People of the State of New York ex rel. Leslie Nizin, on Behalf of Kevin Johnson, Petitioner, v Dora Schriro, Commissioner of Correction, et al., Respondents.
    [907 NYS2d 885]
   Writ of habeas corpus in the nature of an application for the immediate release of the defendant, on his own recognizance or, in the alternative, fixing bail, pending determination of an appeal by the People from an order of the Supreme Court, Queens County, dated September 4, 2009 (Appellate Division docket No. 2009-10413) in an action entitled People v Johnson, pending in the Supreme Court, Queens County, under indictment No. 133/09.

Adjudged that the writ is dismissed, without costs or disbursements.

The defendant has failed to establish that he is entitled to immediate release from incarceration if the writ is granted (see People ex rel. Russell v Artuz, 265 AD2d 512 [1999]; People ex rel. Kaplan v Commissioner of Correction of City of N.Y., 60 NY2d 648 [1983]). Skelos, J.P., Eng, Belen and Hall, JJ., concur.  