Munoz v. Annucci
| Decision Date | 17 June 2021 |
| Docket Number | 530418 |
| Parties | In the Matter of Domingo MUNOZ, Appellant, v. Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent. |
| Court | New York Supreme Court — Appellate Division |
195 A.D.3d 1257
150 N.Y.S.3d 794
In the Matter of Domingo MUNOZ, Appellant,
v.
Anthony J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.
530418
Supreme Court, Appellate Division, Third Department, New York.
Calendar Date: June 3, 2021
Decided and Entered: June 17, 2021
Lisa Napoli, New York City, for appellant.
Letitia James, Attorney General, Albany (Brian D. Ginsberg of counsel), for respondent.
Before: Garry, P.J., Egan Jr., Aarons, Pritzker and Reynolds Fitzgerald, JJ.
MEMORANDUM AND ORDER
Reynolds Fitzgerald, J.
Appeal from a judgment of the Supreme Court (Nichols, J.), entered November 6, 2019 in Albany County, which, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, granted respondent's motion to dismiss the petition/complaint.
In 1981, petitioner was convicted of attempted rape in the first degree and sentenced to 4 to 8 years in prison. In 1982, petitioner was convicted of attempted assault in the second degree and a prison term of 1½ to 3 years was imposed ( People v. Munoz, 125 A.D.2d 715, 509 N.Y.S.2d 786 [1986] ) and, in 1989 and again in 1991, he was convicted of additional nonsex-related felonies and sentences were imposed, and he was released on parole several times ( People v. Rodriguez, 176 A.D.2d 1253, 575 N.Y.S.2d 621 [1991], lvs denied 79 N.Y.2d 830, 831, 580 N.Y.S.2d 210, 588 N.E.2d 108 [1991] ). In 1993, petitioner was convicted of attempted robbery in the first degree and sentenced to eight years to life in prison ( People v. Munoz, 206 A.D.2d 491, 614 N.Y.S.2d 934 [1994] ). In May 2015, petitioner appeared before the Board of Parole and was granted parole with an open release date in June 2015. He remained in custody and, based upon the 1981 attempted rape conviction, he was adjudicated a risk level three sex offender under the Sex Offender Registration Act enacted in 1995 (see Correction Law art 6–C; People v. Munoz, 155 A.D.3d 1068, 64 N.Y.S.3d 594 [2017], lv denied 30 N.Y.3d 912, 2018 WL 894415 [2018] ). The Department of Corrections and Community Supervision (hereinafter DOCCS) concluded that petitioner was subject to the Sex Assault Reform Act (see L 2000, ch 1, as amended by L 2005, ch 544 [hereinafter SARA]) and was required to obtain SARA-compliant housing, and the Board issued an amended parole decision requiring that he obtain SARA-compliant housing, effectively restricting him from entering upon school grounds or living within 1,000 feet of them (see Executive Law § 259–c [14] ; Penal Law § 220.00[14][b] ;
People ex rel. Negron v. Superintendent, Woodbourne Corr. Facility, 36 N.Y.3d 32, 34–35, 136 N.Y.S.3d 819, 160 N.E.3d 1266 [2020] ; People ex rel. Johnson v. Superintendent, Adirondack Corr. Facility, 36 N.Y.3d 187, 197, 140 N.Y.S.3d 124, 163 N.E.3d 1041 [2020] ; People v. Diack, 24 N.Y.3d 674, 681–682, 3 N.Y.S.3d 296, 26 N.E.3d 1151 [2015] ). Unable to find SARA-compliant housing,1 petitioner remained in DOCCS’ custody and, in January 2017, his parole was rescinded after he was found guilty of violating inmate disciplinary rules.
In May 2017, petitioner again appeared before the Board and was granted parole subject to, among other conditions, finding SARA-compliant housing, but remained incarcerated due to his inability to find such
housing. In August 2018, counsel for petitioner submitted a letter to respondent contending that, although he was designated a risk level three sex offender, he was not subject to SARA in that he had fully served the 1981 sentence for attempted rape – which, he argued, had expired in 1990 – his only sex offense and, thus, he was not then serving a sentence for an enumerated sex offense within the meaning of Executive Law § 259–c (14) and was not subject to SARA solely as a risk level three sex offender. Counsel argued that DOCCS could not legally keep petitioner in custody based upon the lack of SARA-compliant housing, and requested that respondent reassess petitioner's proposed addresses without the SARA restrictions and release him from custody. Respondent rejected this request by letter dated September 26, 2018, finding that the SARA conditions, including SARA-compliant housing, applied to petitioner as a level three sex offender. Petitioner again appeared before the Board and, by "amended" or "corrected" decision dated October 15, 2018, the Board continued his open date for parole with the same conditions, including the SARA conditions.
In January 2019, while still in custody, petitioner commenced this hybrid proceeding pursuant to CPLR article 78 and action for declaratory judgment challenging respondent's determination that SARA applied to his parole release based upon his risk level three sex offender classification. Petitioner contended, among other things, that the SARA school grounds restriction did not apply to him as he was no longer serving a sentence for an enumerated offense (see Executive Law § 259–c [14] ). Petitioner further sought a declaratory judgment that respondent had been misconstruing Executive Law § 259–c (14) as applicable
to all risk level three sex offenders. Alternately, petitioner sought declarations that respondent's application of SARA to his 1981 sentence, which was imposed prior to SARA's effective date, violated the prohibition against ex post facto punishment and his substantive due process rights. He further contended that respondent had inconsistently interpreted the SARA requirement, and that it was void for vagueness.
In February 2019, while this proceeding/action was pending, this Court held, in an unrelated case, that the school grounds parole condition in Executive Law § 259–c (14) is applicable to and mandatory only for risk level three sex offenders who are serving a sentence for an offense enumerated in that statute, and does not apply to all parolees solely based upon their designation as risk level three sex offenders, a decision later affirmed by the Court of Appeals ( People ex rel. Negron v. Superintendent, Woodbourne Corr. Facility, 170 A.D.3d 12, 94 N.Y.S.3d 703 [2019], affd 36 N.Y.3d 32, 136 N.Y.S.3d 819, 160 N.E.3d 1266 [2020] ; see People ex rel. Johnson v. Superintendent, Adirondack Corr. Facility, 36 N.Y.3d at 196, 140 N.Y.S.3d 124, 163 N.E.3d 1041 ; Matter of Cajigas v. Stanford, 169 A.D.3d 1168, 1169, 92 N.Y.S.3d 761 [2019], appeal dismissed 34 N.Y.3d 955, 110 N.Y.S.3d 661, 134 N.E.3d 660 [2019] ). In April 2019, respondent made a pre-answer motion to dismiss the petition/complaint as untimely,2 which petitioner opposed, arguing that People ex rel. Negron v. Superintendent, Woodbourne Corr. Facility (supra ) was dispositive
of his statutory claims. While that motion was pending, petitioner was released from custody.3 Supreme Court thereafter granted the motion to dismiss, finding, as respondent had argued, that the petition/complaint was untimely under CPLR 217 in that it was not commenced within four months of the Board's May 2017 parole determination. The court did not address petitioner's requests for declaratory relief.4 Petitioner appeals.
Supreme Court erred in granting respondent's motion to
dismiss the petition/complaint as untimely on the rationale that it was not commenced within four months of the Board's May 2017 determination granting parole. Initially, it bears emphasis that the petition/complaint named as respondent only the Acting Commissioner of Corrections and Community Supervision, and constitutes a challenge to respondent's interpretation and implementation of Executive Law § 259–c (14) as erroneous, inconsistent and unconstitutional. Petitioner points to DOCCS Directive No. 8305, which adopts the policy that specified DOCCS employees will determine whether a particular case should be identified to the Board for imposition of the mandatory SARA parole conditions.5 The petition/complaint seeks relief pursuant to CPLR article 78 in the nature of mandamus to compel respondent to correctly interpret and apply SARA and comply with the Board's grant of parole to him, and a writ of prohibition against applying the SARA school grounds condition to him (see CPLR 7803 ). Notably, petitioner is not seeking review of the Board's parole determination or inclusion of the SARA condition in its determination, and he did not name the Board as a respondent (see CPLR 7802[a] ; compare Matter of Newman v. Stanford, 186 A.D.3d 1859, 1860, 131 N.Y.S.3d 418 [2020] ). Accordingly, it was error for respondent in moving to dismiss, and the court in granting the motion, to treat the petition/complaint as seeking review of the Board's May 2017 determination granting parole subject to SARA conditions. It was also incorrect to overlook the declaratory judgment requests in the petition/complaint.
A proceeding pursuant to CPLR article 78 "must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner ..., or...
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