People ex rel. Jones v. Collado

• Decision Date: 28 July 2022
• Docket Number: 532465
• Citation: 207 A.D.3d 1005,172 N.Y.S.3d 536
• Parties: The PEOPLE of the State of New York EX REL. Lauren E. JONES, on Behalf of Guillemo Gorostiza, Appellant, v. Jaifa COLLADO, as Superintendent of Shawangunk Correctional Facility, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

207 A.D.3d 1005

172 N.Y.S.3d 536

The PEOPLE of the State of New York EX REL. Lauren E. JONES, on Behalf of Guillemo Gorostiza, Appellant,

v.Jaifa COLLADO, as Superintendent of Shawangunk Correctional Facility, et al., Respondents.

532465

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

Calendar Date: June 2, 2022

Decided and Entered: July 28, 2022

The Legal Aid Society, New York City (Laura E. Jones of counsel), for appellant.

Letitia James, Attorney General, Albany (Sean P. Mix of counsel), for respondents.

Before: Garry, P.J., Egan Jr., Lynch, Reynolds Fitzgerald and McShan, JJ.

MEMORANDUM AND ORDER

Reynolds Fitzgerald, J. Appeal from a judgment of the County Court of Ulster County (Rounds, J.), entered September 14, 2020, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 70, without a hearing.

In 2007, Guillemo Gorostiza was convicted of rape in the first degree and was sentenced to 13 years in prison, to be followed by five years of postrelease supervision. During his incarceration, Gorostiza became paralyzed and is required to use a wheelchair. As a result, Gorostiza was housed in a wheelchair-accessible unit at the Shawangunk Correctional Facility. Gorostiza was subsequently adjudicated a risk level three sex offender pursuant to the Sex Offender Registration Act (see Correction Law art 6–C). As a result of this risk level designation and the age of the victim at the time the offense was committed, Gorostiza was subject to the Sexual Assault Reform Act (L 2000, ch 1, as amended by L 2005, ch 544 [hereinafter SARA]) and was prohibited from, among other things, residing within 1,000 feet of school grounds (see Executive Law § 259–c [14] ; People v. Diack, 24 N.Y.3d 674, 681–682, 3 N.Y.S.3d 296, 26 N.E.3d 1151 [2015] ). On May 24, 2020, Gorostiza reached his maximum release date, but he was not released because he was unable to locate suitable housing for sex offenders in New York City. Although Gorostiza was assigned to be released to Fishkill Correctional Facility, a residential treatment facility (hereinafter RTF) (see Penal Law § 70.45[3] ), he was not because the facility was not wheelchair accessible.

In July 2020, petitioner, on behalf of Gorostiza, filed a petition seeking a writ of habeas corpus, alleging that Gorostiza's continued detention past his maximum expiration date was unlawful. County Court dismissed the petition on the grounds that it was unsupported by an affidavit from Gorostiza or another individual having personal knowledge of the facts. Petitioner appeals.

During the pendency of this appeal, Gorostiza was released from Shawangunk Correctional Facility and is residing in SARA compliant housing. Accordingly, because Gorostiza is no longer in custody, habeas corpus relief is no longer available, and the petition is moot (see People ex rel. Morrison v. Keyser, 196 A.D.3d 978, 979, 148 N.Y.S.3d 397 [2021] ; People ex rel. Williams v. Keyser, 194 A.D.3d 1295, 1296, 144 N.Y.S.3d 400 [2021] ; Matter of Gonzalez v. Annucci, 149 A.D.3d 256, 260, 50 N.Y.S.3d 597 [2017], affd 32 N.Y.3d 461, 93 N.Y.S.3d 236, 117 N.E.3d 795 [2018] ). However, because we find the circumstances presented here – where petitioner was retained at a maximum security facility past his maximum expiration date solely due to his physical disability – presents an issue which is significant, will typically evade appellate review, and is likely to recur, we find that the exception to the mootness doctrine applies (see Matter of Gonzalez v. Annucci, 32 N.Y.3d 461, 470, 93 N.Y.S.3d 236, 117 N.E.3d 795 [2018] ; People ex rel. Green v. Superintendent of Sullivan Corr. Facility, 137 A.D.3d 56, 58, 25 N.Y.S.3d 375 [2016] ), and convert this CPLR article 70 proceeding to an action for declaratory judgment (see CPLR 103[c] ; People ex rel. Johnson v. Superintendent, Adirondack Corr. Facility, 36 N.Y.3d 187, 196, 140 N.Y.S.3d 124, 163 N.E.3d 1041 [2020], cert denied ––– U.S. ––––, 142 S. Ct. 914, 212 L.Ed.2d 51 [2022] ; People ex rel. Rivera v. Superintendent, Woodbourne Corr. Facility, 200 A.D.3d 1370, 1371, 160 N.Y.S.3d 411 [2021], lv granted 38 N.Y.3d 1029, 169 N.Y.S.3d 247, 189 N.E.3d 354 [2022] ; People ex rel. Green v. Superintendent of Sullivan Corr. Facility, 137 A.D.3d at 58, 25 N.Y.S.3d 375 ).

Initially, we find that County Court erred in dismissing the habeas corpus petition for failure to submit an affidavit by Gorostiza or by someone having personal knowledge of the facts asserted therein. CPLR 7002(a) specifically authorizes either the person illegally imprisoned or anyone acting on his or her behalf to petition a court for relief. The statute places no restriction on who may bring a petition on behalf of the person restrained (see Matter of Brevorka ex rel. Wittle v. Schuse, 227 A.D.2d 969, 969, 643 N.Y.S.2d 861 [1996] ). The petition must be verified or, alternatively, the petitioner may state the substance of his or her claim by affidavit accompanying the petition (see CPLR 7002[c] ). Additionally, the petition should specify in detail the facts upon which the claim of illegal detention is based (see CPLR 7002[c][2] ; People ex rel. Boyd v. LeFevre, 92 A.D.2d 1042, 1042, 461 N.Y.S.2d 667 [1983], lv denied 59 N.Y.2d 604, 464 N.Y.S.2d 1025, 451 N.E.2d 504 [1983] ; People ex rel. Batsford v. State of New York Div. of Parole, 91 A.D.2d 1112, 1113, 458 N.Y.S.2d 365 [1983], lv denied 58 N.Y.2d 611, 462 N.Y.S.2d 1028, 449 N.E.2d 745 [1983] ). There is no requirement that the petition must be accompanied by an affidavit by the incarcerated individual, and, because the alleged circumstances of Gorostiza's incarceration were set forth in the verified petition, the pleading requirements of CPLR 7002 were satisfied. Accordingly, County Court should not have dismissed the petition.

Turning to the merits, it is undisputed that, at the time that he reached his maximum expiration date, Gorostiza could not locate SARA compliant housing and was not transferred to an RTF. In response to the petition, respondents asserted that Gorostiza was to have been transferred to Fishkill Correctional Facility, an RTF, but that he was not actually transferred because Fishkill was not wheelchair accessible. On appeal, respondents contend that Gorostiza was assigned, but never transferred, to Green Haven Correctional Facility, a wheelchair-accessible RTF, because Gorostiza's placement there was deemed ill-advised due to an unspecified physical altercation with staff when he was previously housed there. Respondents have neither provided convincing authority for their decision not to release petitioner to an RTF, nor do we discern any in the record before us. Further, respondents’ assertion that Gorostiza was in "RTF status" at Shawangunk because respondents provided him with a workbook associated with the nine-module therapeutic course for RTF participants, provided him access to the facility's resource room containing materials addressing employment and housing, and assigned a parole officer to him that he could meet with periodically is unpersuasive. As a result, petitioner remained confined in Shawangunk, a maximum-security correctional facility, for more than eight months past the expiration of his determinate sentence. This Court has previously held, and we reiterate, that "when a risk level three sex offender reaches his or her maximum expiration date, [the Department of Corrections and Community Supervision] must release the individual to either an approved residence or to an [appropriate] RTF" ( People ex rel. Green v. Superintendent of Sullivan Corr. Facility, 137 A.D.3d at 59, 25 N.Y.S.3d 375 ).

Garry, P.J., Lynch and McShan, JJ., concur.

Egan Jr., J. (dissenting).

I agree with the majority that County Court erred in dismissing the petition for a writ of habeas corpus. Guillemo Gorostiza was a convicted felon being held by the State beyond the expiration of his maximum prison sentence. Instead of dismissing the petition, County Court should have held a hearing, with Gorostiza present, adduced testimony on the propriety of his continued confinement...