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Shearer v. New York State Dep't of Correctional Services

State of New York Supreme Court, Appellate Division Third Judicial Department


September 17, 2009

IN THE MATTER OF LARRY SHEARER, APPELLANT,
v.
NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES, RESPONDENT.

MEMORANDUM AND ORDER

Calendar Date: August 3, 2009

Before: Cardona, P.J., Spain, Rose, Kane and Stein, JJ.

Appeal from a judgment of the Supreme Court (Cahill, J.), entered August 12, 2008 in Albany County, which, in a proceeding pursuant to CPLR article 78, dismissed the petition as moot.

Petitioner, an inmate at Mid-State Correctional Facility in Oneida County, received a misbehavior report that charged him with possessing prohibited articles and refusing a direct order after a search of his cell revealed pornographic photographs which he was prohibited from having based upon his participation in a sex offender program. Following a tier I disciplinary hearing, petitioner was found guilty and was given a seven-day work detail and 13 days loss of recreation, and removed from the sex offender program. After an unsuccessful administrative appeal, petitioner commenced the instant CPLR article 78 proceeding and respondent moved to dismiss the petition. Supreme Court granted the motion and dismissed the petition. Petitioner now appeals and we affirm.

We agree with Supreme Court that, because the Attorney General has submitted an affidavit attesting that all references to the determination against petitioner have been expunged from his record by operation of law (see 7 NYCRR 252.5 [d]), his challenge has been rendered moot because he has received all of the relief to which he is entitled (see Matter of Gathers v Artus, 59 AD3d 795 [2009]; Matter of Purcell v McKoy, 54 AD3d 1113, 1114 [2008]). To the extent that petitioner argues that the challenge is not moot because he has not been reinstated to the sex offender program and, as a result, has been denied a certificate of earned eligibility, we note that "inmates have no constitutional or statutory rights to their prior housing or programming status" (Matter of Grant v Fisher, 63 AD3d 1398, 1398 [2009]; see Matter of Howard v Miller, 193 AD2d 988, 989 [1993]).

Cardona, P.J., Spain, Rose, Kane and Stein, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

20090917

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