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People ex rel. Smith v. Cully

Supreme Court of New York, Fourth Department

December 27, 2013

THE PEOPLE OF THE STATE OF NEW YORK EX REL. UNIQUE SMITH, PETITIONER-APPELLANT,
v.
MALCOLM R. CULLY, SUPERINTENDENT, COLLINS CORRECTIONAL FACILITY AND ANDREA W. EVANS, CHAIRWOMAN, NEW YORK STATE DIVISION OF PAROLE, RESPONDENTS-RESPONDENTS.

Appeal from a judgment (denominated decision and order) of the Supreme Court, Erie County (John L. Michalski, A.J.), dated August 6, 2012 in a habeas corpus proceeding. The judgment dismissed the petition.

CHARLES J. GREENBERG, AMHERST, FOR PETITIONER-APPELLANT.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (OWEN DEMUTH OF COUNSEL), FOR RESPONDENTS-RESPONDENTS.

PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND VALENTINO, JJ.

It is hereby ORDERED that said appeal is unanimously dismissed without costs.

Memorandum: Petitioner's appeal from the judgment dismissing his petition for a writ of habeas corpus has been rendered moot by his release from custody upon reaching his maximum expiration date (see People ex rel. Baron v New York State Dept. of Corrections, 94 A.D.3d 1410, 1410, lv denied 19 N.Y.3d 807; People ex rel. Kendricks v Smith, 52 A.D.2d 1090, 1090). Contrary to petitioner's contention, the exception to the mootness doctrine does not apply, inasmuch as the alleged error he identifies on appeal is not likely to recur, the alleged error is not one typically evading review, and the appeal does not involve any substantial or novel issues (see generally Matter of Hearst Corp. v Clyne, 50 N.Y.2d 707, 714-715).


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