| People ex rel. Rosario v Superintendent, Fishkill Corr.Facility |
| 2020 NY Slip Op 01178 [180 AD3d 920] |
| February 19, 2020 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York ex rel. JesusRosario, Respondent, v Superintendent, Fishkill Correctional Facility et al.,Appellants. |
Letitia James, Attorney General, New York, NY (Andrea Oser and Blair J.Greenwald of counsel), for appellants.
Janet E. Sabel, New York, NY (Robert C. Newman of counsel), for respondent.
In a habeas corpus proceeding to obtain immediate release to the community underapplicable conditions of postrelease supervision, the Superintendent of FishkillCorrectional Facility and the New York State Department of Corrections and CommunitySupervision appeal from an order and judgment (one paper) of the Supreme Court,Dutchess County (Maria G. Rosa, J.), dated June 19, 2019. The order and judgment,insofar as appealed from, upon renewal, granted the petition. By decision and order onmotion dated July 26, 2019, this Court granted the appellants' motion to stay enforcementof the order and judgment pending hearing and determination of the appeal.
Ordered that the order and judgment is reversed insofar as appealed from, on the law,without costs or disbursements, upon renewal, the petition is denied, and the proceedingis dismissed on the merits.
In 1985, the petitioner was convicted of rape in the first degree and a number ofother felonies, and he was sentenced to an aggregate indeterminate term of imprisonmentof 8
Although the petitioner's sentence had a maximum expiration date of September 11,2018, he was not released to PRS in the community on that date. Instead, he was placedin a residential treatment facility at Fishkill Correctional Facility because he was unableto identify housing that complied with the mandatory school grounds condition set forthin the Sexual Assault Reform Act (L 2000, ch 1, § 8, as amended by L2005, ch 544, § 2 [hereinafter SARA]) prohibiting him from residing within1,000 feet of school grounds (see Executive Law § 259-c [14];Penal Law §§ 220.00 [14]; 65.10 [4-a] [a]).
The petitioner commenced this habeas corpus proceeding pursuant to CPLR article70 to obtain his immediate release on the ground that his incarceration in a residentialtreatment facility beyond the maximum expiration date of his sentence was illegal. Hecontended, inter alia, that he was not subject to SARA's school grounds conditionbecause he was serving a sentence for a crime that is not enumerated in Executive Law§ 259-c (14). The Supreme Court granted the petition. The Superintendentof the Fishkill Correctional Facility and the New York State Department of Correctionsand Community Supervision (hereinafter together the appellants) appeal.
As all the parties concede, the arguments raised in connection with this habeascorpus proceeding have been rendered academic because the petitioner has been releasedfrom the residential treatment facility to a SARA-compliant New York City shelter (see People ex rel. Kneitel vWarden, Rikers Is. Corr. Facility, 104 AD3d 795, 796 [2013]; People ex rel.Hart v Travis, 240 AD2d 444, 444 [1997]). However, an exception to the mootnessdoctrine is warranted here.
"The mootness doctrine precludes courts from considering questions which, althoughonce active, have become academic by the passage of time or by a change incircumstances" (Matter ofMelinda D., 31 AD3d 24, 28 [2006]; see Matter of Hearst Corp. v Clyne,50 NY2d 707, 714 [1980]). " 'If academic, an appeal is not to be determinedunless it falls within the exception to the doctrine that permits courts to preserve forreview important and recurring issues which, by virtue of their relatively brief existence,would otherwise be nonreviewable' " (Matter of Abbygail G. [Christine Y.—Karen M.], 177AD3d 878, 880 [2019], quoting Matter of Melinda D., 31 AD3d at 28;see Matter of Hearst Corp. v Clyne, 50 NY2d at 714). " 'The exception tothe mootness doctrine requires the existence of three common factors: (1) a likelihoodthe issue will repeat, either between the same parties or among other members of thepublic, (2) an issue or phenomenon typically evading appellate review, and (3) a showingof significant or important questions not previously passed upon' " (Matter ofAbbygail G. [Christine Y.—Karen M.], 177 AD3d at 880, quoting Matterof Melinda D., 31 AD3d at 28; see Matter of Hearst Corp. v Clyne, 50 NY2dat 714).
All three factors excepting this appeal from the mootness doctrine are present here.The issue of whether the SARA school grounds condition applies to all incarceratedoffenders who have been adjudicated level three sex offenders, even if they are notserving a sentence for an offense enumerated in Executive Law § 259-c(14) at the time they become eligible for conditional release or parole, has alreadyresulted in litigation in this Department (see e.g. People ex rel. Delgado v Superintendent, Fishkill Corr.Facility, 65 Misc 3d 1218[A], 2019 NY Slip Op 51726[U] [Sup Ct, DutchessCounty 2019]), is significant, and will typically evade appellate review due to thepassage of time during which inmates, such as the instant petitioner, obtainSARA-compliant housing.
The appellants argue that the language of Executive Law § 259-c (14)is ambiguous, and that it should be rationally interpreted in harmony with the legislativehistory of the 2005 amendment to that statute, which "extended the school groundsmandatory condition to sex offenders designated level three pursuant to Correction Law§ 168-l (6), and also adopted the broad definition of 'school grounds' setforth in Penal Law § 220.00 (14) (a), (b)" (People v Diack, 24 NY3d674, 682 [2015]). Executive Law § 259-c (14) provides, in relevantpart, that "where a person serving a sentence for an offense defined in [Penal Lawarticles 130, 135, or 263, or Penal Law §§ 255.25, 255.26, or 255.27]and the victim of such offense was under the age of [18] at the time of such offense orsuch person has been designated a level three sex offender pursuant to [Correction Law§ 168-l (6)], is released on parole or conditionally released pursuant to[Executive Law § 259-c (1) or (2)], the [Board of Parole] shall require, as amandatory condition of such release, that such sentenced offender shall refrain fromknowingly entering into or upon any school grounds, as that term is defined in [PenalLaw § 220.00 (14)], . . . while one or more of such personsunder the age of [18] are present."
As a result of its inartful wording and use of the term "such person," Executive Law§ 259-c (14) has been interpreted in opposing fashion by the AppellateDivision, Third Department (seePeople ex rel. Negron v Superintendent, Woodbourne Corr. Facility, 170 AD3d12 [2019]) and the Appellate Division, Fourth Department (see People ex rel. Garcia vAnnucci, 167 AD3d 199 [2018]). Inasmuch as the statute is amenable tocompeting interpretations, we agree with the appellants that the language of the statute isambiguous and should be interpreted with reference to its legislative history and thepurpose of the enactment of the 2005 amendment (see Saul v Cahan, 153 AD3d 951, 952 [2017]). Thelegislative history clearly supports an interpretation that imposes the SARA-residencyrequirement based on either an offender's conviction of a specifically enumerated offenseagainst an underage victim or the offender's status as a level three sex offender(see People ex rel. Garcia v Annucci, 167 AD3d at 204; see also Matter of Gonzalez vAnnucci, 32 NY3d 461, 473 n 5 [2018]).
The appellants' remaining contentions are without merit.
Accordingly, the Supreme Court should have denied the petition and dismissed theproceeding. Scheinkman, P.J., Roman, Hinds-Radix and LaSalle, JJ., concur.