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In re Horowitz

Supreme Court of New York, Third Department

June 13, 2013

In the Matter of ALAN J. HOROWITZ, Appellant,
v.
BRIAN FISCHER, as Commissioner of Corrections and Community Supervision, et al., Respondents.

Calendar Date: May 6, 2013

Alan J. Horowitz, Dannemora, appellant pro se.

Eric T. Schneiderman, Attorney General, Albany (Robert M. Goldfarb of counsel), for respondents.

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

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Platkin, J.), entered February 1, 2012 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondents' motion to dismiss the petition.

Petitioner, a prison inmate, commenced this CPLR article 78 proceeding challenging certain determinations denying his grievances related to his removal from the Sex Offender Counseling and Treatment Program, as well as a determination withholding good time as a result of such removal. Supreme Court, noting that petitioner had been reinstated into the treatment program, granted respondents' motion to dismiss the petition as moot. Petitioner now appeals.

The Attorney General advises us that, while petitioner has reached the maximum expiration date of his sentence, he remains confined due to a pending Mental Hygiene Law article 10 proceeding. While the expiration of his prison sentence renders any contention regarding the revocation of his good time credit moot (see Matter of Levola v Fischer, 87 A.D.3d 1191, 1191 [2011]; Matter of McKeown v Goord, 284 A.D.2d 622, 622 [2001]), he remains aggrieved with regard to his removal from the treatment program. That removal stemmed from petitioner's purported unwillingness "to recognize, consider and internalize the harm" he had caused to his victims. His grievances regarding that removal were denied and, while he was reinstated into the program, the restoration noted his failure to meet the program's requirements and stressed that he was only being reinstated because of his ongoing need for treatment. This information remains in petitioner's institutional record and may be considered in the pending Mental Hygiene Law article 10 proceeding advancing against him (see Mental Hygiene Law §§ 10.05 [d]; 10.08 [b]; Matter of State of New York v Mark S., 87 A.D.3d 73, 77-78 [2011], lv denied 17 N.Y.3d 714 [2011]; cf. Matter of Levola v Fischer, 87 A.D.3d at 1191). Therefore, we reinstate the relevant portion of the petition and remit the matter so that respondents may serve an answer (see e.g. Matter of Canteen v Goord, 240 A.D.2d 829, 829 [1997]; Matter of Grant v Senkowski, 146 A.D.2d 948, 949 [1989]).

Peters, P.J., Stein, Spain and Egan Jr., JJ., concur.

ORDERED that the judgment is modified, on the law, without costs, by reversing so much thereof as dismissed that part of the petition seeking expungement of all references in petitioner's institutional record to his removal from the Sex Offender Counseling and Treatment Program; motion denied to that extent and matter remitted to the Supreme Court to permit respondents to serve an answer within 20 days of this Court's decision; and, as so modified, affirmed.


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