Alvarez v. Annucci

• Decision Date: 19 August 2020
• Docket Number: Index No. 3128/18,2019–04287
• Citation: 127 N.Y.S.3d 303 (Mem),186 A.D.3d 704
• Parties: In the Matter of Luis ALVAREZ, appellant, v. Anthony J. ANNUCCI, etc., respondent.
• Court: New York Supreme Court — Appellate Division

186 A.D.3d 704

127 N.Y.S.3d 303 (Mem)

In the Matter of Luis ALVAREZ, appellant,

v.Anthony J. ANNUCCI, etc., respondent.

2019–04287

Index No. 3128/18

Supreme Court, Appellate Division, Second Department, New York.

Argued—February 27, 2020

August 19, 2020

Robert S. Dean, New York, N.Y. (Camilla Hsu of counsel), for appellant.

Letitia James, Attorney General, New York, N.Y. (Anisha S. Dasgupta and Blair J. Greenwald of counsel), for respondent.

REINALDO E. RIVERA, J.P., HECTOR D. LASALLE, BETSY BARROS, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

In a proceeding pursuant to CPLR article 78 in the nature of mandamus to compel the respondent, Anthony J. Annucci, Acting Commissioner of the New York State Department of Corrections and Community Supervision, inter alia, to release the petitioner from Queensboro Correctional Facility, the petitioner appeals from an order and judgment (one paper) of the Supreme Court, Queens County (Diccia T. Pineda–Kirwan, J.), entered November 29, 2018. The order and judgment granted the respondent's motion to dismiss the petition and dismissed the proceeding.

ORDERED that the order and judgment is affirmed, without costs or disbursements.

In 2016, the petitioner was convicted of sexual abuse in the first degree and was sentenced to a determinate term of imprisonment of three years, to be followed by seven years of postrelease supervision. He reached the maximum expiration date of his prison sentence on October 5, 2017. At that time, the New York State Department of Corrections and Community Supervision (hereinafter DOCCS) transferred him to Fishkill Correctional Facility, then to Queensboro Correctional Facility (hereinafter Queensboro), which DOCCS has designated a residential treatment facility (see 7 NYCRR 100.90 [c][3] ).

The petitioner commenced this proceeding pursuant to CPLR article 78 to compel the respondent, Anthony J. Annucci, Acting Commissioner of DOCCS, inter alia, to comply with his obligations pursuant to Correction Law § 201(5) and 9 NYCRR 8002.7 to assist the petitioner in finding housing located more than 1,000 feet from "school grounds" ( Executive Law § 259–c[14] ; Penal Law § 220.00[14] ), and to release him from Queensboro to either a residential treatment facility, as defined by Correction Law § 2(6), or to approved housing in the community, in compliance with the residency restrictions of the Sexual Assault Reform Act of 2000 (L 2000, ch 1, as amended; hereinafter SARA). During the pendency of the proceeding, DOCCS transferred the petitioner to community housing. The Supreme Court granted the respondent's motion to dismiss the petition and dismissed the proceeding. The court concluded, inter alia, that the proceeding had been rendered academic by the petitioner's release to compliant housing, and that no exceptions to the mootness doctrine applied. The petitioner appeals, seeking reinstatement of the petition and a determination on the merits.

"It is a fundamental principle of our jurisprudence that the power of a court to declare the law only arises out of, and is limited to, determining the rights of persons which are actually controverted in a particular case pending before the tribunal" ( Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 713, 431 N.Y.S.2d 400, 409 N.E.2d 876 ; see Matter of Abbygail G. [Christine Y.-Karen M.], 177 A.D.3d 878, 880, 115 N.Y.S.3d 40 ). "Courts are generally prohibited from issuing advisory opinions or ruling on hypothetical inquiries. Thus, an appeal is moot unless an adjudication of the merits will result in immediate and practical consequences to the parties" ( Coleman v. Daines, 19 N.Y.3d 1087, 1090, 955 N.Y.S.2d 831, 979 N.E.2d 1158 [citation omitted] ). Here, the contentions raised in connection with this proceeding have been rendered academic because the petitioner has been released from the residential treatment facility to community housing (see Matter of Kirkland v. Annucci, 150 A.D.3d 736, 737–738, 54 N.Y.S.3d 40 ). However, an exception to the mootness doctrine is warranted here.

"The mootness doctrine precludes courts from considering questions which, although once active, have become academic by the passage of time or by a change in circumstances" (Matter of Melinda D., 31 A.D.3d 24, 28, 815 N.Y.S.2d 644 ; see Matter of Hearst Corp. v. Clyne, 50 N.Y.2d at 714, 431 N.Y.S.2d 400, 409 N.E.2d 876 ). " ‘If academic, an appeal is not to be determined unless it falls within the exception to the doctrine that permits courts to preserve for review important and recurring issues which, by virtue of their relatively brief existence, would otherwise be nonreviewable’ " ( Matter of Abbygail G. [Christine Y.-Karen M.], 177 A.D.3d at 880, 115 N.Y.S.3d 40, quoting Matter of Melinda D., 31 A.D.3d at 28, 815 N.Y.S.2d 644 ; see Matter of Hearst Corp. v. Clyne, 50 N.Y.2d at...