John D. Justice v. Evans

Decision Date29 May 2014
Citation117 A.D.3d 1365,986 N.Y.S.2d 699,2014 N.Y. Slip Op. 03900
PartiesIn the Matter of John D. JUSTICE, Appellant, v. Andrea EVANS, as Chair of the Division of Parole, Respondent.
CourtNew York Supreme Court — Appellate Division

117 A.D.3d 1365
986 N.Y.S.2d 699
2014 N.Y. Slip Op. 03900

In the Matter of John D. JUSTICE, Appellant,
v.
Andrea EVANS, as Chair of the Division of Parole, Respondent.

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

May 29, 2014.



John D. Justice, Comstock, appellant pro se.

Eric T. Schneiderman, Attorney General, Albany (Laura Etlinger of counsel), for respondent.


Before: PETERS, P.J., LAHTINEN, McCARTHY, GARRY and DEVINE, JJ.

McCARTHY, J.

Appeal from a judgment of the Supreme Court (Platkin, J.), entered August 23, 2013 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent's motion to dismiss the petition.

Petitioner, a prison inmate, was convicted of two counts of manslaughter and sentenced to an aggregate prison term of 13 1/3 to 40 years ( People v. Justice, 202 A.D.2d 981, 609 N.Y.S.2d 734 [1994],lv. denied83 N.Y.2d 968, 616 N.Y.S.2d 21, 639 N.E.2d 761 [1994] ). Petitioner was conditionally released to parole supervision in 2005, but he violated the conditions of his parole and, in 2007, his parole was revoked and he was ordered held until the expiration of his sentence ( see People ex rel. Justice v. Racette, 111 A.D.3d 1041, 975 N.Y.S.2d 781 [2013],lv. denied22 N.Y.3d 861, 2014 WL 593181 [2014] ). In April 2012, petitioner filed an application with the Board of Parole for a rehearing with regard to his 2007 parole revocation based upon newly discovered evidence. Failing to receive a response to his application, petitioner commenced a proceeding in Supreme Court, Erie County, in July 2012. The court (Michalski, J.) issued a November 2012 order finding that 120 days was a reasonable time for respondent to respond to petitioner's application and, that time not having elapsed prior to the commencement of the proceeding, the court dismissed petitioner's petition as premature. As petitioner

[986 N.Y.S.2d 700]

had still failed to receive a response to his application by February 2013, he commenced the instant proceeding seeking an order in the nature of mandamus to compel the Board to conduct a parole revocation rehearing. During the pendency of this proceeding, respondent informed petitioner in April 2013 that the Board had considered his application and determined that a rehearing was not warranted. Subsequently, respondent moved to dismiss the proceeding. Supreme Court granted the motion, finding that respondent's April 2013 denial of petitioner's application had rendered his petition moot....

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7 cases
  • Thornton v. Saugerties Cent. Sch. Dist.
    • United States
    • New York Supreme Court Appellate Division
    • December 1, 2016
    ...123 A.D.3d 1317, 1318–1319, 999 N.Y.S.2d 253 [2014] [internal quotation marks and citation omitted]; see Matter of Justice v. Evans, 117 A.D.3d 1365, 1366, 986 N.Y.S.2d 699 [2014] ). Civil Service Law § 70(2) provides, in relevant part: "Upon the transfer of a function ... from one departme......
  • Green v. Annucci
    • United States
    • New York Supreme Court Appellate Division
    • August 17, 2017
    ...748 N.E.2d 1074 [2001] ), and it is only available "when there is a clear legal right to the relief sought" (Matter of Justice v. Evans, 117 A.D.3d 1365, 1366, 986 N.Y.S.2d 699 [2014] [internal quotation marks and citations omitted] ). While Civil Service Law § 75 affords certain rights to ......
  • Borrell v. N.Y. State Div. of Parole, 518619
    • United States
    • New York Supreme Court Appellate Division
    • December 4, 2014
    ...1215, 929 N.Y.S.2d 783 [2011], lv. denied 18 N.Y.3d 802, 938 N.Y.S.2d 860, 962 N.E.2d 285 [2011] ; accord Matter of Justice v. Evans, 117 A.D.3d 1365, 1366, 986 N.Y.S.2d 699 [2014] ), mandamus does not lie (see e.g. Matter of Justice v. Evans, 117 A.D.3d at 1366, 986 N.Y.S.2d 699 ; Matter o......
  • Borrell v. N.Y. State Div. of Parole
    • United States
    • New York Supreme Court Appellate Division
    • December 4, 2014
    ...1215, 929 N.Y.S.2d 783 [2011], lv. denied 18 N.Y.3d 802, 938 N.Y.S.2d 860, 962 N.E.2d 285 [2011]; accord Matter of Justice v. Evans, 117 A.D.3d 1365, 1366, 986 N.Y.S.2d 699 [2014] ), mandamus does not lie ( see e.g. Matter of Justice v. Evans, 117 A.D.3d at 1366, 986 N.Y.S.2d 699; Matter of......
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