Opinion
2012-09-28
The PEOPLE of the State of New York ex rel. Andrique BARON, Petitioner–Appellant, v. NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES and Ekpe D. Ekpe, Superintendent, Watertown Correctional Facility, Respondents–Respondents.
Kathleen P. Reardon, Rochester, for Petitioner–Appellant. Eric T. Schneiderman, Attorney General, Albany (Zainab A. Chaudhry of Counsel), for Respondents–Respondents.
Kathleen P. Reardon, Rochester, for Petitioner–Appellant. Eric T. Schneiderman, Attorney General, Albany (Zainab A. Chaudhry of Counsel), for Respondents–Respondents.
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, CARNI, AND SCONIERS, JJ.
MEMORANDUM:
Inasmuch as petitioner has been released to parole supervision, this appeal by him from the judgment dismissing his petition for a writ of habeas corpus has been rendered moot ( see People ex rel. Baron v. New York State Dept. of Corrections, 94 A.D.3d 1410, 1410, 942 N.Y.S.2d 392,lv. denied19 N.Y.3d 807, 2012 WL 2401232;see also People ex rel. Graham v. Fischer, 70 A.D.3d 1381, 1381–1382, 893 N.Y.S.2d 793;People ex rel. Mitchell v. Unger, 63 A.D.3d 1591, 1591, 879 N.Y.S.2d 761;People ex rel. Hampton v. Dennison, 59 A.D.3d 951, 951, 872 N.Y.S.2d 341,lv. denied12 N.Y.3d 711, 2009 WL 1298996), and the exception to the mootness doctrine does not apply herein ( see Graham, 70 A.D.3d at 1381–1382, 893 N.Y.S.2d 793;Hampton, 59 A.D.3d at 951, 872 N.Y.S.2d 341;see generally Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714–715, 431 N.Y.S.2d 400, 409 N.E.2d 876). Contrary to petitioner's contention, People ex rel. Phillips v. LaClair, 84 A.D.3d 1606, 1606, 924 N.Y.S.2d 589 does not compel a different result. Although the Third Department concluded therein that the petitioner's appeal was moot because the petitioner was “no longer incarcerated or subject to the jurisdiction of the Board of Parole” ( id.), the Court subsequently made clear that a petitioner on parole supervision may not maintain a habeas corpus claim ( see People ex rel. Speights v. McKoy, 88 A.D.3d 1039, 1040, 930 N.Y.S.2d 498;People ex rel. Howard v. Yelich, 87 A.D.3d 772, 773, 928 N.Y.S.2d 609). Petitioner's reliance on Speights and Howard is misplaced. Unlike this case, Speights and Howard called into question the calculation of the maximum expiration date of the petitioner's sentence and, thus, the Court decided to convert those habeas corpus proceedings to proceedings pursuant to CPLR article 78 ( see Speights, 88 A.D.3d at 1040, 930 N.Y.S.2d 498;Howard, 87 A.D.3d at 773, 928 N.Y.S.2d 609). Here, by contrast, the calculation of the maximum expiration date of petitioner's sentence is not affected by the issue presented.
It is hereby ORDERED that said appeal is unanimously dismissed without costs.