| Matter of Kirkland v Annucci |
| 2017 NY Slip Op 03514 [150 AD3d 736] |
| May 3, 2017 |
| Appellate Division, Second Department |
[*1]
| In the Matter of Franklin Kirkland,Appellant, v Anthony J. Annucci, Acting Commissioner, New York State Department ofCorrections and Community Supervision, Respondent. |
Robert S. Dean, New York, NY (Julia Busetti of counsel), for appellant.
Eric T. Schneiderman, Attorney General, New York, NY (Anisha Dasgupta, Holly A.Thomas, and Andrew Rhys Davies of counsel), for respondent.
In a proceeding pursuant to CPLR article 78 in the nature of mandamus to compel therespondent, Anthony J. Annucci, Acting Commissioner of the New York State Department ofCorrections and Community Supervision, inter alia, to release the petitioner from FishkillCorrectional Facility, the petitioner appeals from an order and judgment (one paper) of theSupreme Court, Dutchess County (Rosa, J.), dated June 11, 2015, which granted the respondent'smotion to dismiss the petition and, in effect, dismissed the proceeding.
Ordered that the order and judgment is affirmed, without costs or disbursements.
In 2011, the petitioner was convicted of criminal sexual act in the second degree and wassentenced to a determinate term of imprisonment of five years, to be followed by five years ofpostrelease supervision. He reached the maximum expiration date of his prison sentence onMarch 31, 2015. At that time, the New York State Department of Corrections and CommunitySupervision (hereinafter DOCCS) transferred him to Fishkill Correctional Facility (hereinafterFishkill), which DOCCS has designated a residential treatment facility (see 7 NYCRR100.90 [c] [3]).
The petitioner commenced this proceeding pursuant to CPLR article 78 to compel therespondent, Anthony J. Annucci, as Acting Commissioner of DOCCS, inter alia, to comply withhis obligations pursuant to Correction Law § 201 (5) and 9 NYCRR 8002.7 to assistthe petitioner in finding housing located more than 1,000 feet from "school grounds" (ExecutiveLaw § 259-c [14]; Penal Law § 220.00 [14]), and to release him fromFishkill to either a residential treatment facility, as defined by Correction Law § 2(6), or to approved housing in the community. During the pendency of the proceeding, DOCCStransferred the petitioner to a shelter in Brooklyn. The Supreme Court granted the respondent'spre-answer motion to dismiss the petition, and, in effect, dismissed the proceeding. The courtconcluded that the proceeding had been rendered academic by the petitioner's release tocompliant housing and that no exceptions to the mootness doctrine applied. The petitionerappeals, seeking reinstatement of the petition and a determination on the merits.
"It is a fundamental principle of our jurisprudence that the power of a court to declare [*2]the law only arises out of, and is limited to, determining the rightsof persons which are actually controverted in a particular case pending before the tribunal"(Matter of Hearst Corp. v Clyne, 50 NY2d 707, 713 [1980]). "Courts are generallyprohibited from issuing advisory opinions or ruling on hypothetical inquiries. Thus, an appeal ismoot unless an adjudication of the merits will result in immediate and practical consequences tothe parties" (Coleman v Daines, 19NY3d 1087, 1090 [2012] [citation omitted]; see Matter of New York State Commn. on Jud. Conduct v Rubenstein,23 NY3d 570, 576 [2014]; Matter of Hearst Corp. v Clyne, 50 NY2d at 714). Here,since the petitioner received the ultimate relief he was seeking, the Supreme Court properlyconcluded that the proceeding had been rendered academic. Moreover, the court did notimprovidently exercise its discretion in declining to invoke an exception to the mootness doctrine(see Matter of Hearst Corp. v Clyne, 50 NY2d at 714-715). Significantly, asdemonstrated by the petitioner's submissions, that court had determined the merits of at least twoother CPLR article 78 petitions involving similarly-situated inmates, and thus the issues raisedare not evading judicial review (see id.). Rivera, J.P., Hall, Roman and BrathwaiteNelson, JJ., concur.