| Matter of Lebron v Alexander |
| 2009 NY Slip Op 09568 [68 AD3d 1476] |
| December 24, 2009 |
| Appellate Division, Third Department |
| In the Matter of Elvin Lebron,Appellant-Respondent, v George B. Alexander, as Chair of the Division of Parole,Respondent-Appellant. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Frank Brady of counsel), forrespondent-appellant.
Rose, J. Cross appeals from a judgment of the Supreme Court (Feldstein, J.), enteredOctober 24, 2008 in Clinton County, which partially granted petitioner's application, in aproceeding pursuant to CPLR article 78, to review a determination of the Board of Paroledenying his request for parole release.
In 1994, petitioner was convicted of various offenses, including manslaughter in the firstdegree, and sentenced to a prison term of 11 to 22 years. His 2006 application for parole wasinitially denied, but the Board of Parole later directed that a new interview be held because thesentencing minutes had not been available at the original interview. After the sentencing courtwas unable to locate the minutes, they were determined to be permanently unavailable.Following the second hearing, the Board found that petitioner had shot a man to death and againdenied him parole. When the Board failed to timely respond to petitioner's administrative appeal,he commenced this CPLR article 78 proceeding. Supreme Court then held that there was nobasis in the record for the Board's finding that petitioner had shot a man to death and directed anew hearing for that reason. Given the unavailability of sentencing minutes, however, SupremeCourt also directed the Board to presume a favorable recommendation of the sentencing court.[*2]Both parties appeal.[FN*]
Initially, we note that petitioner has been conditionally released, an event that wouldnormally render moot any challenges to an earlier hearing (see Matter of Dobranski vDennison, 53 AD3d 994 [2008], lv denied 11 NY3d 711 [2008]). The establishedunavailability of the sentencing minutes here does not come within the exception to the mootnessdoctrine and, in any event, would not warrant a new hearing (see Matter of Freeman vAlexander, 65 AD3d 1429, 1430 [2009]; Matter of Cartagena v Alexander, 64 AD3d841, 841-842 [2009]; Matter of Porter v Alexander, 63 AD3d 945, 946 [2009]).However, the issue of whether a presumption favoring release arises from the unavailability ofsentencing minutes is an issue likely to recur and evade review and is a significant issue notpreviously passed on. It therefore falls within the exception to the mootness doctrine (seeMatter of Lovell v New York State Div. of Parole, 40 AD3d 1166, 1167 [2007]; Matterof Standley v New York State Div. of Parole, 34 AD3d 1169, 1170 [2006]).
As to that issue, respondent argues that no favorable presumption should arise where, ashere, the Board is actually unable, rather than fails, to consider the sentencing minutes. Weagree. We have not previously inferred such a presumption where the sentencing minutes areunavailable for reasons beyond the Board's control, and we discern no basis here for SupremeCourt's imposition of a favorable presumption upon remand of the matter for a new hearing.
Peters, J.P., Malone Jr., Stein and McCarthy, JJ., concur. Ordered that the judgment ismodified, on the law, without costs, by reversing so much thereof as directed the Board of Paroleto presume a favorable parole recommendation by the sentencing court, and, as so modified,affirmed.
Footnote *: Contrary to petitioner'sargument, respondent's cross appeal was timely taken (see CPLR 5513; Oliver vAlcog, 155 AD2d 1001, 1002 [1989]).