Opinion
524819
12-14-2017
The PEOPLE of the State of New York EX REL. Brian KIM, Appellant, v. Brandon J. SMITH, as Superintendent of Greene Correctional Facility, et al., Respondents.
Brian Kim, Flushing, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Frank Brady of counsel), for Brandon J. Smith and another, respondents. Zachary W. Carter, Corporation Counsel, New York City (Jonathan A. Popolow of counsel), for New York City Department of Correction, respondent.
Brian Kim, Flushing, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany (Frank Brady of counsel), for Brandon J. Smith and another, respondents.
Zachary W. Carter, Corporation Counsel, New York City (Jonathan A. Popolow of counsel), for New York City Department of Correction, respondent.
Before: Garry, J.P., Egan Jr., Devine, Rumsey and Pritzker, JJ.
MEMORANDUM AND ORDER
Appeal from a judgment of the Supreme Court (Fisher, J.), entered March 31, 2017 in Greene County, which denied petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.
Following completion of the term of imprisonment imposed upon his federal conviction of passport fraud, petitioner was delivered to the custody of the Department of Corrections and Community Supervision to begin serving the indeterminate sentence imposed upon his conviction of various larceny-related crimes in New York County. While so incarcerated, petitioner commenced this proceeding seeking a writ of habeas corpus, alleging that he was entitled to certain jail-time credit that, if properly calculated, would result in a parole eligibility date of September 19, 2016—rather than December 24, 2016. Respondents, noting that petitioner had been released to parole supervision on December 17, 2016, urged Supreme Court to deny the proceeding as moot. Supreme Court granted respondents the requested relief, prompting this appeal.
We affirm. Inasmuch as petitioner has been released to parole supervision, the instant proceeding—wherein petitioner seeks an immediate release from state custody —is moot (see People ex rel. Yourdon v. Semrau, 133 A.D.3d 1351, 1351, 19 N.Y.S.3d 456 [2015] ; People ex rel. Anderson v. James, 125 A.D.3d 1329, 1330, 999 N.Y.S.2d 906 [2015] ; People ex rel. Roman v. Haggett, 79 A.D.3d 1470, 1471, 912 N.Y.S.2d 455 [2010] ; People ex rel. Melendez v. McLaughlin, 30 A.D.3d 922, 923, 816 N.Y.S.2d 914 [2006] ), and we discern no basis upon which to invoke the exception to the mootness doctrine (see People ex rel. Roman v. Haggett, 79 A.D.3d at 1471, 912 N.Y.S.2d 455 ; People ex rel. Limmer v. McKinney, 23 A.D.3d 806, 807, 803 N.Y.S.2d 750 [2005] ). Moreover, contrary to petitioner's assertion, the issues presented do not affect his maximum expiration date and, therefore, we decline his invitation to convert this matter to a CPLR article 78 proceeding and address the merits (see People ex rel. Keyes v. Khahaifa, 101 A.D.3d 1665, 1665, 955 N.Y.S.2d 786 [2012], lv denied 20 N.Y.3d 862, 965 N.Y.S.2d 81, 987 N.E.2d 642 [2013] ; compare People ex rel. Davidson v. Smith, 142 A.D.3d 1237, 1237–1238, 38 N.Y.S.3d 276 [2016] ; People ex rel. Albert v. Schneiderman, 120 A.D.3d 856, 856, 991 N.Y.S.2d 180 [2014] ).
ORDERED that the appeal is dismissed, as moot, without costs.
Garry, J.P., Egan Jr., Devine, Rumsey and Pritzker, JJ., concur.