Opinion
05-30-2024
In the Matter of Smith PERCINTHE, Appellant, v. DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, Respondent.
Smith Percinthe, Napanoch, appellant pro se. Letitia James, Attorney General, Albany (Laura Etlinger of counsel), for respondent.
Smith Percinthe, Napanoch, appellant pro se.
Letitia James, Attorney General, Albany (Laura Etlinger of counsel), for respondent.
Before: Garry, P.J., Reynolds Fitzgerald, Fisher, McShan and Powers, JJ.
MEMORANDUM AND ORDER
Reynolds Fitzgerald, J.
Appeal from a judgment of the Supreme Court (Kevin R. Bryant, J.), rendered April 25, 2023 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent’s motion to dismiss the petition.
Petitioner, an incarcerated individual, commenced this CPLR article 78 proceed- ing challenging the special conditions imposed upon his release to parole supervision in 2010, 2012 and 2015 that limited his access to the Internet and social networking sites and seeking to enjoin respondent from enforcing the same special conditions upon him in the future. Supreme Court granted respondent’s subsequent motion to dismiss the petition as moot. This appeal ensued.
[1, 2] We affirm. Typically, "courts are precluded from considering questions which, although once live, have become moot by passage of time or change in circumstances" (City of New York v. Maul, 14 N.Y.3d 499, 507, 903 N.Y.S.2d 304, 929 N.E.2d 366 [2010] [internal quotation marks and citation omitted]). "In general[,] an appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment" (Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714, 431 N.Y.S.2d 400, 409 N.E.2d 876 [1980]; accord Matter of Canarelli v. New York State Dept. of Corr. & Community Supervision, 177 A.D.3d 1058, 1059, 112 N.Y.S.3d 331 [3d Dept. 2019]).
[3] The record establishes that petitioner is no longer subject to the special conditions he seeks to challenge as the sentence he was serving in connection with the periods of parole supervision, including the period of postrelease supervision, expired on May 8, 2018, prior to the conviction for which he is currently incarcerated. Further, there were no sustained violations of those special conditions while petitioner was released to parole supervision. As such, any adjudication regarding the propriety of special conditions placed upon petitioner during the relevant parole periods will not "result in immediate and practical consequences to the parties" (Coleman v. Daines, 19 N.Y.3d 1087, 1090, 955 N.Y.S.2d 831, 979 N.E.2d 1158 [2012]; see Matter of Marxuach v. New York State Dept. of Corr. & Community Supervision, 211 A.D.3d 1442, 1444, 182 N.Y.S.3d 312 [3d Dept. 2022]). Further, we are unpersuaded by petitioner’s contention that the exception to the mootness doctrine applies because, among other things, challenges to the imposition of special conditions of parole supervision do not typically evade review (see Matter of Marxuach v. New York State Dept. of Corr. & Community Supervision, 211 A.D.3d at 1444, 182 N.Y.S.3d 312; Matter of Boehm v. Evans, 79 A.D.3d 1445, 1446, 914 N.Y.S.2d 318 [3d Dept. 2010], lv denied 16 N.Y.3d 707, 2011 WL 1119927 [2011], cert denied 565 U.S. 1159, 132 S.Ct. 1091, 181 L.Ed.2d 983 [2012]; see also Matter of Karlin v. Stanford, 209 A.D.3d 1189, 1189–1191, 176 N.Y.S.3d 868 [3d Dept. 2022], lv denied 39 N.Y.3d 1125, 188 N.Y.S.3d 6, 209 N.E.3d 596 [2023]). In view of the foregoing, Supreme Court properly dismissed the matter as moot (see Matter of Marxuach v. New York State Dept. of Corr. & Community Supervision, 211 A.D.3d at 1444, 182 N.Y.S.3d 312).
[4] To the extent that petitioner requests that respondent be enjoined from imposing the same special conditions in the event that he is released to parole supervision in connection with the sentence he is currently serving, such matter involves a future determination by respondent that is too remote and speculative to be justiciable (see generally Allard v. Allard, 145 A.D.3d 1254, 1255, 43 N.Y.S.3d 580 [3d Dept. 2016]; Schulz v. Cuomo, 133 A.D.3d 945, 947–948, 22 N.Y.S.3d 602 [3d Dept. 2015], appeal dismissed 26 N.Y.3d 1139, 27 N.Y.S.3d 502, 47 N.E.3d 782 [2016], lv denied 27 N.Y.3d 907, 2016 WL 3152535 [2016]; see also CPLR 7803[3]).
Garry, P.J., Fisher, McShan and Powers, JJ., concur. ORDERED that the judgment is affirmed, without costs.