Matter of Young v Espada

2012 NY Slip Op 03699 [95 AD3d 1478]

May 10, 2012

Appellate Division, Third Department

As corrected through Wednesday, June 27, 2012

2—In the Matter of Jamel W. Young, Appellant, v AlinaEspada et al., Respondents. (And Two Other Related Proceedings.)

—[*1]Michelle E. Stone, Vestal, for appellant.Lathinen, J. Appeal from an order of the Family Court of Broome County (Pines, J.), entered June 3, 2011, which, among other things, dismissed petitioner's application,in a proceeding pursuant Family Ct Act article 6, for supervised visitation with his children.

While incarcerated at the Broome County Jail, petitioner commenced this proceeding seekingsupervised visitation with his children at that facility. Family Court dismissed his petitionwithout prejudice to his right to reapply once assigned to a state correctional facility. On thisappeal, petitioner's counsel seeks to be relieved of her assignment on the ground that there are nononfrivolous issues to be raised on appeal.

Petitioner's transfer from the Broome County Jail to a state correctional facility, where he isnow serving a 20-year sentence for second degree murder, renders this appeal moot (cf. Matter of Boore v Parks, 63 AD3d1307, 1307 [2009]). The proper course would be for petitioner to file a new petition thatwould afford Family Court an opportunity to evaluate the children's best interests underpetitioner's current circumstances (see id. at 1307-1308). Because the appeal is moot, weneed not address counsel's application to be relieved of her assignment (see Matter of Kimberly C. [NormanC.], 92 AD3d 985 [2012]; Matter of Alexander K. [Jennifer N.], 77 AD3d 1023, 1024[2010]).

Peters, P.J., Rose, Malone Jr. and Garry, JJ., concur. Ordered that the appeal is dismissed, asmoot, without costs.