| Matter of Rosa v Fischer |
| 2011 NY Slip Op 06626 [87 AD3d 1252] |
| September 29, 2011 |
| Appellate Division, Third Department |
| In the Matter of Jose Rosa, Appellant, v Brian Fischer, asCommissioner of Correctional Services, et al., Respondents. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), forrespondents.
Appeal from a judgment of the Supreme Court (Lynch, J.), entered March 3, 2011 in AlbanyCounty, which, in a proceeding pursuant to CPLR article 78, granted respondents' motion todismiss the petition.
Petitioner was convicted in 1992 of criminal sale of a controlled substance in the third degreeand was sentenced to 6 to 12 years in prison. In 1996, while participating in a work releaseprogram, he was arrested and returned to the custody of the Department of Correctional Services(hereinafter DOCS). In 1998, he was convicted of two counts of attempted assault in the firstdegree and criminal possession of a weapon in the second degree for which he was sentenced tothree concurrent terms of 25 years to life in prison. DOCS determined that petitioner's term ofimprisonment on the 1998 crimes would run consecutive to the time remaining on his priorundischarged sentence in calculating his parole eligibility date. The time computation sheet usedby DOCS in connection therewith characterized petitioner as "Returned Absconder WithConsecutive New Term." Petitioner objected to this characterization and made several attemptsto have the sheet corrected, including filing a grievance that was denied. Ultimately, petitionercommenced this CPLR article 78 proceeding challenging the inaccuracy of the time computationsheet and seeking to have references to him as an absconder expunged therefrom. Respondentsmoved to dismiss the petition on the ground, among others, that it was moot. Supreme Courtgranted the motion and this appeal by petitioner ensued.[*2]
We affirm. The record discloses that DOCS has issued arevised time computation sheet characterizing petitioner as "Returned Absc/Arr WithConsecutive New Term," making it clear that petitioner did not abscond from the temporaryrelease program but, instead, could not return to the program because of his arrest. Given thatpetitioner has received all the relief requested in his petition and to which he is entitled, thematter is moot (see Matter of Moore vTravis, 51 AD3d 1180 [2008]; Matter of Singh v Eagen, 19 AD3d 848, 849 [2005]). Althoughpetitioner argues in his brief that the actual time computation was improper, he has not preservedthis claim due to his failure to raise it in the petition (see Matter of Mingo v Annucci, 49 AD3d 1106, 1107 [2008],lv denied 11 NY3d 707 [2008]). Accordingly, Supreme Court properly grantedrespondents' motion.
Spain, J.P., Rose, Lahtinen, McCarthy and Garry, JJ., concur. Ordered that the judgment isaffirmed, without costs.