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February 20, 2004.

THOMAS J. GERACI, Petitioner,
Sheriff, Schoharie County Jail,[fn1] Respondent

The opinion of the court was delivered by: GARY SHARPE, Magistrate Judge Page 2

*fn1 Petitioner named the Schoharie County District Attorney as the respondent in this action. See Pet. at P. 1. However, the proper respondent in a petition brought pursuant to 28 U.S.C. § 2254 is the petitioner's custodian. See Rule 2(a) of the rules governing § 2254 cases; Viserto v. Goord, 97-CV-0633, 1998 WL 214814, at *1 n.1 (W.D.N.Y. Apr. 20, 1998). Since Geraci was incarcerated at the Schoharie County Jail when he commenced this action, the court substitutes the Sheriff of the Schoharie County Jail as the respondent in this proceeding.


 I. Background

  A. State Court Proceedings

  According to the testimony adduced at trial, Robert Missini was a New York State Trooper assigned to the Community Narcotics Enforcement Team ("CNET") in Schoharie County, New York. See Transcript of Trial of Thomas J. Geraci (10/1/96) ("Tr.") at P. 31.*fn2 On October 28, 1995, Trooper Missini met with a confidential informant and they drove to a nearby gasoline station where they met petitioner, pro se Thomas J. Geraci (Tr. at PP. 33-34). Geraci and the informant engaged in a brief conversation, and Geraci entered the vehicle and the three drove for a period of time (Tr. at P. 34). Geraci informed Trooper Missini that the lysergic acid diethylamide ("LSD") and cocaine which Trooper Missini indicated he wished to purchase would cost $130.00 (Tr. at PP. 34-35). Trooper Missini provided Geraci with that amount, after which Geraci exited the automobile, entered a nearby building and returned to Page 3 Trooper Missini's car without any drugs (Tr. at p. 35). After the three men drove to another location, Geraci left the car, entered another building, and returned with a clear plastic bag containing a white powder.*fn3 Id. At that time, Geraci returned $50.00 to Trooper Missini because he was unable to purchase LSD. Id.

  Geraci was indicted by a grand jury and charged with third degree criminal sale of a controlled substance and fifth degree criminal possession of a controlled substance (Tr. at PP. 5-6). Geraci's jury trial commenced on October 1, 1996, with County Court Judge George R. Bartlett III, presiding. At the conclusion, Geraci was found guilty of both counts (Tr. (Volume II)*fn4 at P. 128). On April 9, 1997, Judge Bartlett sentenced Geraci to concurrent indeterminate terms of one to three years imprisonment. See Sentencing Tr. (4/9/97) at PP. 11-12.

  Geraci appealed his convictions and sentence to the New York State Supreme Court, Appellate Division, Third Department. That court affirmed, People v. Geraci, 254 A.D.2d 522 (3d Dept. 1998). Geraci never Page 4 sought leave to appeal that decision to New York's Court of Appeals (Pet. at ¶ 9(e)), and Geraci did not file any other state court challenges to his convictions. Id. at ¶ 10.

  B. This Proceeding

  Geraci filed his habeas petition pursuant to 28 U.S.C. § 2254 in this District on March 19, 1999. See Pet. Before the respondent filed his response, Geraci filed a notice with the court indicating that he was no longer incarcerated (Dkt. No. 15). On October 25, 1999, the Office of the Attorney General for the State of New York, acting on respondent's behalf, filed an answer and memorandum of law in opposition to the petition (Dkt. Nos. 16-17).

  II. Discussion

 A. Release from Prison

  Initially this court must determine whether Geraci's release from prison has rendered this action moot.

  Generally, a habeas petitioner's release from prison does not render that party's habeas corpus petition moot because § 2254 requires only that the petitioner be "in custody" at the time the petition is filed. Wheel v. Robinson, 34 F.3d 60, 63 (2d Cir. 1994); Cadilla v. Johnson, Page 5 119 F. Supp.2d 366, 371 n.2 (S.D.N.Y. 2000). The Constitution's "case-or-controversy" requirement will also generally be satisfied by the typical habeas petition challenging the validity of the conviction because the incarceration (or restriction(s) imposed by the terms of the parole) "constitutes a concrete injury, caused by the conviction and redressable by invalidation of the conviction." Spencer v. Kemna, 523 U.S. 1, 7 (1998); United States v. Mercurris, 192 F.3d 290, 293 (2d Cir. 1999) (citing Spencer).

  In this case, Geraci's claims do not appear to have been rendered moot by his release from prison because he filed his habeas petition while in custody, and the collateral consequences which still exist as a result of his felony conviction*fn5 preclude a finding that this matter is moot. See Spencer, 523 U.S. at 12 ("it is an `obvious fact of life that most criminal convictions do in fact entail adverse collateral legal consequences'") (quoting Sibron v. New York, 392 U.S. 40, 55 (1968)); Binder v. Szostak, 96-CV-0640, 1997 WL 176353, at ...

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