| Matter of Santiago v Roy |
| 2014 NY Slip Op 03892 [117 AD3d 1352] |
| May 29, 2014 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Roman Santiago, Appellant, v RichardRoy, as Inspector General, et al., Respondents. |
Roman Santiago, Ossining, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Treasure of counsel),for respondents.
Stein, J.P. Appeal from a judgment of the Supreme Court (Cahill, J.), entered January22, 2013 in Albany County, which dismissed petitioner's application, in a proceedingpursuant to CPLR article 78, to review a determination of respondent Department ofCorrections and Community Supervision denying petitioner's request to correctinformation related to his security risk classification.
Petitioner was involved in two armed robberies and, during one of them, fired shotsat civilians and a police officer. As a result, he was convicted in 1996 of two counts ofattempted murder in the second degree, two counts of robbery in the first degree andreckless endangerment in the first degree, and was sentenced to an aggregate prison termof 20 to 40 years. Under the initial security classification guideline utilized when he wasreceived by respondent Department of Corrections and Community Supervision(hereinafter DOCCS), petitioner received three points for forcible contact and referencewas made to his commission of the crimes of murder in the second degree and his use offive aliases. His total score placed him in a maximum security risk classification. In 2010,under the security reclassification guideline then utilized, petitioner again received threepoints for forcible contact, the same references were made to the crimes of murder aswell as his five aliases, and he was placed in the maximum security risk classification. InMay 2011, DOCCS notified petitioner that it was reducing the score for forcible contactto two [*2]points and addressed his concerns regardingthe incorrect references to the crimes of murder and his five aliases in determining hissecurity risk classification. Notwithstanding this, DOCCS informed petitioner that heremained in the maximum security risk classification.
Because the above corrections were not reflected in petitioner's initial securityclassification guideline, in January 2012 petitioner made a request pursuant to 7 NYCRR5.50 to have the corrected information included in anticipation that this would reduce hissecurity risk classification. DOCCS responded that petitioner was under consideration formedium security classification, which was still pending, and that this rendered his requestpremature. Petitioner interpreted this as a denial of his request and administrativelyappealed the determination. When he did not receive a timely reply to his administrativeappeal, he commenced this CPLR article 78 proceeding. Respondents' motion to dismissthe petition for failure to exhaust administrative remedies was denied. Following serviceof respondents' answer, Supreme Court ultimately dismissed the petition and petitionernow appeals.
Initially, the record discloses that, in 2012, DOCCS issued a corrected/updated initialsecurity classification guideline containing the corrected information noted above. TheAttorney General has advised this Court that the corrected information is also included inpetitioner's most recent reclassification guideline issued in 2013. In view of this,petitioner has received all of the relief to which is he entitled and his claim that theguideline contains erroneous information regarding his criminal acts and purportedaliases is now moot (see e.g.Matter of Rosa v Fischer, 87 AD3d 1252, 1253 [2011], lv denied 19NY3d 802 [2012]; Matter ofJustice v Fischer, 74 AD3d 1648, 1648-1649 [2010], lv denied 15 NY3d710 [2010]).
Petitioner's additional claim—that DOCCS made no effort to provide the mostrecent information concerning the time until his earliest release date as relevant to thescoring used in determining his security risk classification—is also moot. As notedby the Attorney General, the 2013 reclassification guideline reveals that, as of that date,petitioner had between 13 and 24 months until his earliest release date, for which he wasgiven a score of two points. Inasmuch as this is the score that he claims he should havebeen given, petitioner has no cause to complain.
Lastly, petitioner argues that DOCCS erred in applying the 2005 revised securityclassification guideline to his previous classifications because it did not exist at the timeof his 1996 initial screening. He essentially asserts that such retroactive applicationconstitutes an unconstitutional ex post facto law. The ex post facto prohibition, however,applies only to penal statutes (see Kellogg v Travis, 100 NY2d 407, 410 [2003])and not to guidelines of DOCCS such as those at issue here (see e.g. Matter of Davilav Travis, 283 AD2d 744, 745 [2001], lv denied 97 NY2d 604 [2001];People ex rel. Persing v Lacy, 276 AD2d 815, 816 [2000]). Accordingly, andinasmuch as we find that petitioner failed to exhaust his administrative remedies withregard to the reference to his shooting at police officers in the revised security riskclassification, Supreme Court properly dismissed the petition.
McCarthy, Rose and Egan Jr., JJ., concur. Ordered that the judgment is affirmed,without costs.