Khan v. Annucci

• Decision Date: 16 September 2020
• Docket Number: Index No. 2587/18,2019–01820
• Citation: 186 A.D.3d 1370,131 N.Y.S.3d 32
• Parties: In the Matter of Mohammed KHAN, Appellant, v. Anthony J. ANNUCCI, etc., Respondent.
• Court: New York Supreme Court — Appellate Division

186 A.D.3d 1370

131 N.Y.S.3d 32

In the Matter of Mohammed KHAN, Appellant,

v.Anthony J. ANNUCCI, etc., Respondent.

2019–01820

Index No. 2587/18

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

Argued—January 31, 2020

September 16, 2020

Robert S. Dean, New York, N.Y. (Jan Hoth and Allison Frankel of counsel), for appellant.

Letitia James, Attorney General, New York, N.Y. (Blair J. Greenwald and Steven C. Wu of counsel), for respondent.

WILLIAM F. MASTRO, J.P., JEFFREY A. COHEN, LINDA CHRISTOPHER, PAUL WOOTEN, JJ.

DECISION & ORDER

In a proceeding pursuant to CPLR article 78 in the nature of prohibition to prohibit the respondent from enforcing Executive Law § 259–c against the petitioner, the petitioner appeals from an order and judgment (one paper) of the Supreme Court, Kings County (Debra Silber, J.), dated January 31, 2019. The order and judgment granted the respondent's motion pursuant to CPLR 3211(a) to dismiss the petition and dismissed the petition.

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

In 2011, the petitioner was convicted, after a jury trial, of sexual abuse in the first degree, forcible touching, and endangering the welfare of a child. He was sentenced to an aggregate determinate term of imprisonment of three years plus a period of post-release supervision (hereinafter PRS) of five years. The Appellate Division, First Department, affirmed those convictions (see People v. Khan, 112 A.D.3d 507, 507–508, 976 N.Y.S.2d 387 ), as well as the petitioner's subsequent designation under the Sex Offender Registration Act (see Correction Law art 6–C) as a level one sexually violent offender (see People v. Khan, 125 A.D.3d 433, 433–434, 998 N.Y.S.2d 889 ). Anticipating that the petitioner would be subject to the provisions of the Sexual Assault Reform Act (hereinafter SARA) while on PRS, specifically that he not knowingly come within 1,000 feet of a school (see Executive Law § 259–c[14] ; Penal Law § 220.00[14] ), the petitioner's wife and children moved into a SARA-compliant apartment in Brooklyn in April 2014. The petitioner was incarcerated through his maximum release date and, three months later, moved in with his family. He remained there for approximately four years without incident.

In June 2018, the petitioner learned that a charter school had leased space within 1,000 feet of his apartment and was scheduled to open in September of that year. The petitioner's parole officer therefore directed the petitioner to move into a new SARA-compliant residence. On September 27, 2018, the petitioner moved into a new SARA-compliant apartment within walking distance of his family's apartment.

The petitioner commenced this proceeding in the nature of prohibition by notice and verified petition dated October 19, 2018. The petitioner argued that SARA's school-grounds requirement does not apply to those individuals serving periods of PRS after completing their determinate term of imprisonment, and, in the alternative, that enforcing that requirement against him violated his substantive due process rights. The respondent moved pursuant to CPLR 3211(a) to dismiss the petition, arguing, among other things, that the petitioner's arguments failed to state a cause of action, were barred by res judicata and were, in any event, without merit. By order and judgment dated January 31, 2019, the Supreme Court granted the respondent's motion to dismiss and dismissed the petition. The petitioner appeals.

Although the petitioner's period of PRS expired during the pendency of this appeal, we nevertheless find that the issues he raises are substantial and novel, are likely to recur, and will typically evade review, and accordingly, we review the order under the exception to the mootness doctrine (see Matter of Gonzalez v. Annucci, 32 N.Y.3d 461, 470–471, 93 N.Y.S.3d 236, 117 N.E.3d 795 ).

We agree with the Supreme Court's determination granting the respondent's motion pursuant to CPLR 3211(a) to dismiss the petition and dismissing the petition upon the comprehensive record of established facts that the parties placed before it on the motion to dismiss (see Matter of Altman v. Suffolk County Dept. Of Civ. Serv., 165 A.D.3d 921, 922, 86 N.Y.S.3d 587 ).

To resolve the legal issue raised in this case, we turn to "familiar principles of statutory construction" ( Matter of County of Orange [Al Turi Landfill, Inc.], 75 A.D.3d 224, 234, 903 N.Y.S.2d 60 ). " ‘Statutes which relate to the same subject matter must be construed together unless a contrary legislative intent is expressed’ " ( id. at 234, 903 N.Y.S.2d 60, quoting Matter of Dutchess County Dept. of Social Servs. v. Day, 96 N.Y.2d 149, 153, 726 N.Y.S.2d 54, 749 N.E.2d 733 ). "The courts must ‘harmonize the various provisions of related statutes and ... construe them in a way that renders them internally compatible’ " ( Matter of County of Orange [Al Turi Landfill, Inc.], 75 A.D.3d at 234, 903 N.Y.S.2d 60, quoting Matter of Aaron J., 80 N.Y.2d 402, 407, 590 N.Y.S.2d 843, 605 N.E.2d 330 ). "In the case of a conflict between a general statute and a special statute governing the same subject matter, the general statute must yield" ( Matter of County of Orange [Al Turi Landfill, Inc.], 75 A.D.3d at 234, 903 N.Y.S.2d 60 ; see Matter of Brusco v. Braun, 84 N.Y.2d 674, 681, 621 N.Y.S.2d 291, 645 N.E.2d 724 ). "Finally, ‘[a] construction rendering statutory language superfluous is to be avoided’ " ( Matter of County of Orange [Al Turi Landfill, Inc.], 75 A.D.3d at 234, 903 N.Y.S.2d 60, quoting Matter of Branford House v. Michetti, 81 N.Y.2d 681, 688, 603 N.Y.S.2d 290, 623 N.E.2d 11 ).

Prohibition is an extraordinary remedy to be invoked only where there is a clear legal right, and the "action taken or threatened is clearly without jurisdiction or in excess of jurisdiction" ( Matter of Rainka v. Whalen, 73 A.D.2d 731, 732, 423 N.Y.S.2d 292, affd 51 N.Y.2d 973, 435 N.Y.S.2d 721, 416 N.E.2d 1056 ; see Schachter v. Tomaselli, 105 A.D.2d 779, 780, 481 N.Y.S.2d 725 ). Here, prohibition does not lie as "[t]he petitioner has failed to demonstrate a clear legal right to the relief sought" ( Matter of Weaver v. Sweeney, 178 A.D.3d 710, 710, 111 N.Y.S.3d 247 ).

Contrary to the petitioner's contention, SARA's school-grounds requirement unambiguously applies equally to certain sex offenders serving periods of PRS beyond the maximum date of their release from prison as it does to those "on parole or conditionally released" ( Executive Law § 259–c[14] ). Specificall...