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In the Matter of Donald v. Brian Fischer

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


April 18, 2013

IN THE MATTER OF DONALD CAMPBELL, APPELLANT,
v.
BRIAN FISCHER, AS COMMISSIONER OF CORRECTIONS AND COMMUNITY SUPERVISION, RESPONDENT.

Appeal from a judgment of the Supreme Court (Zwack, J.), entered February 14, 2012 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of the Central Office Review Committee denying his grievance.

MEMORANDUM AND ORDER

Calendar Date: February 25, 2013

Before: Mercure, J.P., Rose, Spain and Garry, JJ.

Petitioner, a prison inmate, filed a grievance alleging that the Department of Corrections and Community Supervision unfairly treats inmates with driving while intoxicated convictions differently than other inmates seeking to participate in temporary release programs. His grievance was ultimately denied by the Central Office Review Committee. Petitioner thereafter commenced this CPLR article 78 proceeding challenging that denial and Supreme Court dismissed the petition, prompting this appeal.

This Court has been informed by the Attorney General that, since this appeal has been taken, petitioner has withdrawn his name from consideration for the work release program and, in any event, would have been eligible for such consideration because he is now within nine months of his reappearance date. "Inasmuch as petitioner is no longer aggrieved by the administrative action that was the subject of his grievance, his appeal must be dismissed as moot" (Matter of Patel v New York State Dept. of Correctional Servs., 84 AD3d 1668, 1669 [2011] [citations omitted]). Consequently, to the extent that petitioner raised a constitutional challenge, it cannot be addressed given the absence of a justiciable controversy (see Matter of Justice v Fischer, 74 AD3d 1648, 1649 [2010], lv denied 15 NY3d 710 [2010]).

Mercure, J.P., Rose, Spain and Garry, JJ., concur.

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

ENTER:

Robert D. Mayberger Clerk of the Court

20130418

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