| People ex rel. Forshey v John |
| 2010 NY Slip Op 05911 [75 AD3d 1100] |
| July 2, 2010 |
| Appellate Division, Fourth Department |
| The People of the State of New York ex rel. Robert S. Forshey,Appellant, v Dennis John, Sheriff, Cattaraugus County, et al.,Respondents. |
—[*1] Robert S. Forshey, petitioner-appellant pro se. Andrew M. Cuomo, Attorney General, Albany (Zainab A. Chaudhry of counsel), forrespondent-respondent New York State Division of Parole.
Appeal from a judgment (denominated order) of the Supreme Court, Cattaraugus County(Larry M. Himelein, A.J.), entered November 25, 2008 in a habeas corpus proceeding. Thejudgment denied the petition.
It is hereby ordered that the judgment so appealed from is unanimously reversed on the lawwithout costs and the writ of habeas corpus is sustained.
Memorandum: Petitioner commenced this proceeding seeking a writ of habeas corpus on theground that he was unlawfully incarcerated for violating his parole. According to petitioner, hissentence was terminated pursuant to Executive Law § 259-j (3-a) by the date of thealleged parole violation and thus he was no longer on parole. We agree with petitioner, and wetherefore further agree with him that Supreme Court erred in failing to sustain the writ.
The record establishes that in 2000 petitioner pleaded guilty to attempted criminalpossession of a controlled substance in the third degree and attempted criminal sale of acontrolled substance in the third degree and was sentenced to concurrent terms of incarcerationof 6 to 12 years. It is undisputed that his presumptive release was in April 2005, and that he wascharged with a parole violation in July 2007 and was eventually arrested for that parole violationin August 2008. Petitioner challenged the authority of the New York State Division of Parole(respondent) to arrest him based on the parole violation in July 2007 because, pursuant toExecutive Law § 259-j (3-a), his sentence was terminated in April 2007, i.e., after hispresumptive release in April 2005 followed by two years of unrevoked parole. Respondentcontended in response, however, that the version of Executive Law § 259-j (3-a) asamended in 2004 did not include parolees on presumptive release, such as petitioner, and the2008 amendment to Executive Law § 259-j (3-a), which specifically encompasses paroleeson [*2]presumptive release, should not be applied retroactively.We reject respondent's contention that the statute should not be applied retroactively.
The legislative history of Executive Law § 259-j (3-a) establishes that the statute wasamended in 2008 in order to "correct an oversight in a chapter of the laws of 2004 thatunintentionally neglected to include certain offenders who are presumptively released in themandatory termination of parole supervision provisions" and that the exclusion of such offendersfrom the statute was a "drafting oversight" (Senate Mem in Support, 2008 McKinney's SessionLaws of NY, at 2159). Although amendments to statutes are presumed to have prospectiveapplication only, unless the Legislature's preference for retroactivity is explicitly stated orotherwise indicated, it is also the case that "remedial legislation should be given retroactiveeffect in order to effectuate its beneficial purpose" (Matter of Gleason [Michael Vee,Ltd.], 96 NY2d 117, 122 [2001]). We conclude that the 2008 amendment to Executive Law§ 259-j (3-a) is remedial inasmuch as the legislative history establishes that the purpose ofthe 2008 amendment was " 'to clarify what the law was always meant to say and do' "(Brothers v Florence, 95 NY2d 290, 299 [2000]). Thus, we conclude that the 2008amendment to Executive Law § 259-j (3-a) should be given retroactive effect (seeMatter of OnBank & Trust Co., 90 NY2d 725, 731 [1997]). As so applied, petitioner'ssentence should have been terminated in April 2007, following two years of unrevoked parole,and the court should have sustained the writ of habeas corpus and ordered petitioner's immediaterelease. Although petitioner has been released from custody, we conclude under the limitedcircumstances of this case that the exception to the mootness doctrine applies (cf. People ex rel. Hampton vDennison, 59 AD3d 951 [2009], lv denied 12 NY3d 711 [2009]; seegenerally Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714-715 [1980]).Present—Smith, J.P., Lindley, Sconiers, Pine and Gorski, JJ.