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Johnson v. Evans

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


September 30, 2010

IN THE MATTER OF JOHNATHAN JOHNSON, APPELLANT,
v.
ANDREA W. EVANS, AS CHAIR OF THE DIVISION OF PAROLE, ET AL., RESPONDENTS.

MEMORANDUM AND ORDER

Calendar Date: August 2, 2010

Before: Mercure, J.P., Spain, Malone Jr., Stein and Egan Jr., JJ.

Appeal from a judgment of the Supreme Court (Teresi, J.), entered March 29, 2010 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondents' motion to dismiss the petition.

Petitioner was convicted in 1988 and 1989 of the crimes of robbery in the first degree, kidnapping in the second degree, attempted rape in the first degree and two counts of bail jumping in the first degree, and is currently incarcerated. In September 2009, he wrote a letter to respondent Chair of the Division of Parole requesting that his application for "executive clemency" be forwarded to the Governor of the State of New York. When his request was denied, petitioner commenced this CPLR article 78 proceeding in the nature of mandamus to compel. Respondents moved to dismiss the petition for failure to state a cause of action, and Supreme Court granted the motion. This appeal ensued.

The Attorney General has advised this Court that, after this CPLR article 78 proceeding was commenced, the Director of the Executive Clemency Bureau of the Division of Parole acknowledged that he misunderstood the nature of petitioner's application, which is actually a request for a pardon, and that he has since forwarded the application to the Governor for consideration. Given that this was the very relief requested in the verified petition and petitioner has been afforded all the relief to which he is entitled, the appeal must be dismissed as moot (see e.g. Matter of Rivera v New York State Div. of Parole, 23 AD3d 863, 864 [2005], lv denied 6 NY3d 709 [2006]). Although petitioner contends that he also submitted a May 2009 application for executive clemency that has not been considered by the Governor, the Executive Clemency Bureau has no record of such request. As petitioner has not alleged that this application has been denied, his argument that the matter is not moot is unpersausive.

Mercure, J.P., Spain, Malone Jr., Stein and Egan Jr., JJ., concur.

ORDERED that the appeal is dismissed, as moot, without costs.

20100930

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