People ex rel. Rosario v. Superintendent, Fishkill Corr. Facility

• Decision Date: 19 February 2020
• Docket Number: Index No. 479/19,2019–07362
• Citation: 180 A.D.3d 920,120 N.Y.S.3d 411
• Parties: The PEOPLE, etc., EX REL. Jesus ROSARIO, Respondent, v. SUPERINTENDENT, FISHKILL CORRECTIONAL FACILITY, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

180 A.D.3d 920

120 N.Y.S.3d 411

The PEOPLE, etc., EX REL. Jesus ROSARIO, Respondent,

v.SUPERINTENDENT, FISHKILL CORRECTIONAL FACILITY, et al., Appellants.

2019–07362

Index No. 479/19

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

Argued - January 13, 2020

February 19, 2020

Letitia James, Attorney General, New York, NY (Andrea Oser and Blair J. Greenwald of counsel), for appellants.

Janet E. Sabel, New York, NY (Robert C. Newman of counsel), for respondent.

ALAN D. SCHEINKMAN, P.J., SHERI S. ROMAN, SYLVIA O. HINDS–RADIX, HECTOR D. LASALLE, JJ.

DECISION & ORDER

In a habeas corpus proceeding to obtain immediate release to the community under applicable conditions of postrelease supervision, the Superintendent of Fishkill Correctional Facility and the New York State Department of Corrections and Community Supervision appeal from an order and judgment (one paper) of the Supreme Court, Dutchess County (Maria G. Rosa, J.), dated June 19, 2019. The order and judgment, insofar as appealed from, upon renewal, granted the petition. By decision and order on motion dated July 26, 2019, this Court granted the appellants' motion to stay enforcement of the order and judgment pending hearing and determination of the appeal.

ORDERED that the order and judgment is reversed insofar as appealed from, on the law, without costs or disbursements, upon renewal, the petition is denied, and the proceeding is dismissed on the merits.

In 1985, the petitioner was convicted of rape in the first degree and a number of other felonies, and he was sentenced to an aggregate indeterminate term of imprisonment of 8? to 25 years. As a result of the conviction of rape in the first degree, the petitioner was designated a level three sex offender pursuant to the Sex Offender Registration Act (Correction Law art 6–C). He received a "final discharge" from the aggregate sentence on September 12, 2013. Thereafter, in October 2013, the petitioner was convicted of attempted burglary in the second degree and sentenced, as a second violent felony offender, to a determinate term of imprisonment of five years plus five years of postrelease supervision (hereinafter PRS).

Although the petitioner's sentence had a maximum expiration date of September 11, 2018, he was not released to PRS in the community on that date. Instead, he was placed in a residential treatment facility at Fishkill Correctional Facility because he was unable to identify housing that complied with the mandatory school grounds condition set forth in the Sexual Assault Reform Act (L 2000, ch 1, § 8, as amended by L 2005, ch 544, § 2; hereinafter SARA) prohibiting him from residing within 1,000 feet of school grounds (see Executive Law § 259–c[14] ; Penal Law §§ 220.00[14] ; 65.10[4–a][a] ).

The petitioner commenced this habeas corpus proceeding pursuant to CPLR article 70 to obtain his immediate release on the ground that his incarceration in a residential treatment facility beyond the maximum expiration date of his sentence was illegal. He contended, inter alia, that he was not subject to SARA's school grounds condition because he was serving a sentence for a crime that is not enumerated in Executive Law § 259–c(14). The Supreme Court granted the petition. The Superintendent of the Fishkill Correctional Facility and the New York State Department of Corrections and Community Supervision (hereinafter together the appellants) appeal.

As all the parties concede, the arguments raised in connection with this habeas corpus proceeding have been rendered academic because the petitioner has been released from the residential treatment facility to a SARA-compliant New York City shelter (see People ex rel. Kneitel v. Warden, Rikers Is. Corr. Facility, 104 A.D.3d 795, 796, 960 N.Y.S.2d 331 ; People ex rel. Hart v. Travis, 240 A.D.2d 444, 444, 658 N.Y.S.2d 1007 ). 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 707, 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 878, 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 714, 431 N.Y.S.2d 400, 409 N.E.2d 876 ). " ‘The exception to the mootness doctrine requires the existence of three common factors: (1) a likelihood the issue will repeat, either between the same parties or among other members of the public, (2) an issue or phenomenon typically evading appellate review, and (3) a showing of significant or important questions not previously passed upon’ " ( 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 714, 431 N.Y.S.2d 400, 409 N.E.2d 876 ).

All three factors excepting this appeal from the mootness doctrine are present here. The issue of whether the SARA school grounds condition applies to all incarcerated offenders who have been adjudicated level three sex offenders, even if they are not serving a sentence for an offense enumerated in Executive Law § 259–c(14) at the time they become eligible for conditional release or parole, has already resulted in litigation in this Department (see e.g. People ex rel. Delgado v. Superintendent, Fishkill Corr. Facility, 65 Misc.3d 1218[(A), 2019 N.Y. Slip Op. 51726[U], 2019 WL 5556619 [Sup. Ct., Dutchess County] ), is significant, and will typically evade appellate review due to the passage of time during which inmates, such as the instant petitioner, obtain SARA-compliant housing.

The appellants argue that the language of Executive Law § 259–c(14) is ambiguous, and that it should be...