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Andreo v. Alexander

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


April 1, 2010

IN THE MATTER OF JOSE ANDREO, APPELLANT,
v.
GEORGE ALEXANDER, AS CHAIR OF THE NEW YORK STATE DIVISION OF PAROLE, RESPONDENT.

The opinion of the court was delivered by: Rose, J.

MEMORANDUM AND ORDER

Calendar Date: March 1, 2010

Before: Mercure, J.P., Rose, Lahtinen, Kavanagh and Garry, JJ.

Appeal from a judgment of the Supreme Court (Platkin, J.), entered June 26, 2009 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of the Board of Parole denying petitioner's request for parole release.

Petitioner commenced this CPLR article 78 proceeding challenging a June 2008 determination of the Board of Parole denying his request for parole release. The Attorney General has advised this Court that petitioner reappeared before the Board in January 2010 at which time he was again denied parole. Although this event would normally render moot any challenges to the earlier hearing (see e.g. Matter of Banks v Dennison, 57 AD3d 1041 [2008], lv dismissed 12 NY3d 905 [2009]), we agree with petitioner that the issue of whether the Board's efforts to obtain the sentencing minutes here excused its failure to consider them is one which is likely to recur and evade review, and it is a significant issue not previously passed on. It therefore falls within the exception to the mootness doctrine (see Matter of Standley v New York State Div. of Parole, 34 AD3d 1169, 1170 [2006]; Matter of McLaurin v New York State Bd. of Parole, 27 AD3d 565, 566 [2006], lv denied 7 NY3d 708 [2006]).

It is well settled that the Board must make diligent efforts to obtain the sentencing minutes and this requirement is met where the record includes a written communication from the clerk of the sentencing court stating that the minutes cannot be located or produced (see Matter of LaSalle v New York State Div. of Parole, 69 AD3d 1252, 1253 [2010]; Matter of Blasich v New York State Bd. of Parole, 68 AD3d 1339, 1340 n [2009]; Matter of Freeman v Alexander, 65 AD3d 1429, 1430 [2009]). Here, the Board made three written requests for the minutes to the Chief Clerk of the sentencing court and no response was received.*fn1 Inasmuch as there apparently was no attempt to contact the Clerk by other means, or to communicate with the appropriate administrative judge regarding the Clerk's failure to respond, we are not persuaded that the Board made diligent efforts to obtain the sentencing minutes.*fn2 Accordingly, the judgment must be reversed and the matter remitted to the Board (see Matter of Smith v New York State Div. of Parole, 64 AD3d 1030, 1031 [2009]).

Mercure, J.P., Lahtinen, Kavanagh and Garry, JJ., concur.

ORDERED that the judgment is reversed, on the law and the facts, without costs, and matter remitted to the Board of Parole which is directed to obtain petitioner's sentencing minutes, if available, and the recommendations of the sentencing court, if any, within 30 days of this Court's decision and to conduct a de novo hearing within 45 days of the date thereof.


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