
    In the Matter of Gerald McGivern, Appellant, v Edward Donnelly, as Superintendent of Wende Correctional Facility, Respondent.
    [727 NYS2d 683]
   —Judgment unanimously affirmed without costs. Memorandum: Supreme Court did not err in converting this habeas corpus proceeding into a CPLR article 78 proceeding because petitioner is not entitled to immediate release from custody (see, People ex rel. Jones v Russi, 199 AD2d 1043, lv denied 83 NY2d 753), and the court then properly dismissed the petition based on the failure of petitioner to exhaust his administrative remedies (see, Matter of Nelson v Coughlin, 188 AD2d 1071, appeal dismissed 81 NY2d 834; CPLR 7801 [1]). We reject petitioner’s contention that the retroactive application of 9 NYCRR 8002.6 as amended violates the constitutional prohibition against ex post facto laws (see, People ex rel. Santoro v Hollins, 273 AD2d 829). We have considered petitioner’s remaining contention and conclude that it lacks merit. (Appeal from Judgment of Supreme Court, Erie County, Mahoney, J. — CPLR art 78.) Present — Hayes, J. P., Wisner, Hurlbutt, Kehoe and Lawton, JJ.  