GREEN, JUSTICE v. SMITH, BRANDON

Opinion

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department

811 KAH 14-00170 PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, SCONIERS, AND WHALEN, JJ.

THE PEOPLE OF THE STATE OF NEW YORK EX REL. JUSTICE GREEN, PETITIONER-APPELLANT,

V MEMORANDUM AND ORDER

BRANDON SMITH, SUPERINTENDENT, MID-STATE CORRECTIONAL FACILITY AND BRIAN FISCHER, COMMISSIONER, NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, RESPONDENTS-RESPONDENTS.

GETNICK LIVINGSTON ATKINSON & PRIORE, LLP, UTICA (PATRICK G. RADEL OF COUNSEL), FOR PETITIONER-APPELLANT.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (PAUL GROENWEGEN OF COUNSEL), FOR RESPONDENTS-RESPONDENTS.

Appeal from a judgment (denominated order and judgment) of the Supreme Court, Oneida County (Erin P. Gall, J.), entered April 9, 2013 in a habeas corpus proceeding. The judgment denied the petition.

It is hereby ORDERED that said appeal is unanimously dismissed without costs.

Memorandum: Petitioner’s appeal from the judgment dismissing his petition for a writ of habeas corpus has been rendered moot by his release to parole supervision (see People ex rel. Baron v New York State Dept. of Corrections, 94 AD3d 1410, 1410, lv denied 19 NY3d 807; People ex rel. Graham v Fischer, 70 AD3d 1381, 1381-1382), and the exception to the mootness doctrine does not apply herein (see Baron, 94 AD3d at 1410; Graham, 70 AD3d at 1381-1382; see generally Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714-715). While this Court has the power to convert the habeas corpus proceeding into a CPLR article 78 proceeding, we decline to do so under the circumstances of this case (see People ex rel. Keyes v Khahaifa, 101 AD3d 1665, 1665, lv denied 20 NY3d 862).

Entered: July 11, 2014 Frances E. Cafarell Clerk of the Court