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In re Gonzalez

Supreme Court of New York, Third Department

March 23, 2017

In the Matter of MIGUEL GONZALEZ, Appellant,
ANTHONY J. ANNUCCI, as Acting Commissioner of Corrections and Community Supervision, Respondent.

          Calendar Date: January 11, 2017

          Jill K. Sanders, Center for Appellate Litigation, New York City, for appellant.

          Eric T. Schneiderman, Attorney General, Albany (Zainab A. Chaudhry of counsel), for respondent.

          Before: McCarthy, J.P., Garry, Lynch, Rose and Aarons, JJ.

          Garry, J.

         Appeal from a judgment of the Supreme Court (Hard, J.), entered July 20, 2015 in Albany County, which, in a proceeding pursuant to CPLR article 78, dismissed the petition.

         Petitioner pleaded guilty to the crime of rape in the second degree and, on April 3, 2012, was sentenced to 2½ years in prison to be followed by three years of postrelease supervision (hereinafter PRS). Petitioner was subsequently adjudicated a risk level one sex offender pursuant to the Sex Offender Registration Act (see Correction Law art 6-C). Due to the victim's age, petitioner was subject to the provisions of the

         Sexual Assault Reform Act (L 2000, ch 1, § 8, as amended by L 2005 ch 544, § 2 [hereinafter SARA]) prohibiting him from, while on PRS, residing within 1, 000 feet of a school or place where children congregate (see Executive Law § 259-c [14]; Penal Law § 220.00 [14]). Having earned a credit of four months and 10 days of good time, petitioner's conditional release date was May 20, 2014. Petitioner was not released on his conditional release date due to his inability to secure an approved residence.

         The maximum expiration date of petitioner's prison sentence was September 30, 2014. Shortly before that date, the Department of Corrections and Community Supervision (hereinafter DOCCS) advised petitioner that as he still had not secured a residence that complied with the provisions of SARA, he was being transferred to Woodbourne Correctional Facility, an approved residential treatment facility (hereinafter RTF) (see 7 NYCRR 100.50 [c] [2]), to begin serving his term of PRS there until an approved residence was secured. Petitioner arrived at that facility on September 30, 2014, and, in October 2014, filed an inmate grievance challenging his placement at Woodbourne on various grounds [1]. Following a consolidated hearing with other inmates who were also challenging their placement at Woodbourne, an Inmate Grievance Review Committee found only that there was insufficient evidence before it to support Woodbourne's designation as an RTF. Upon administrative review, the Superintendent of Woodbourne found that petitioner was assigned to an appropriate RTF, that he was afforded various employment and programming opportunities provided by law that are not available to general population inmates, and that he had received appropriate assistance in the process of securing SARA-compliant housing. Having sought review but receiving no response from the Central Office Review Committee, petitioner commenced this CPLR article 78 proceeding. While the proceeding was pending, petitioner was released from Woodbourne to a SARA-compliant homeless shelter in Manhattan in February 2015. Based upon petitioner's release, Supreme Court dismissed the petition as moot and declined to apply the exception to the mootness doctrine. Petitioner appeals.

         Initially, we address petitioner's contention that he was denied his good time allowance and that he should have been released on his May 20, 2014 conditional release date. Under the Penal Law, "[a] period of [PRS] shall commence upon the person's release from imprisonment to supervision by [DOCCS]" (Penal Law § 70.45 [5] [a]). Had petitioner been released or transferred to Woodbourne on his May 20, 2014 conditional release date, or sometime prior to his September 30, 2014 maximum expiration date, his three-year term of PRS would have commenced at that time instead of on September 30, 2014, when he was ultimately transferred to Woodbourne. Thus, as petitioner currently remains on PRS until September 30, 2017, we agree that his claim in this regard is not moot.

         Nevertheless, we are not persuaded that the claim has merit. "Whether to withhold an inmate's good time allowance is a discretionary determination and is not subject to judicial review as long as it is made in accordance with [the] law and is based upon a review of [the] inmate's entire institutional record" (Matter of Fowler v Fischer, 98 A.D.3d 1212, 1212 [2012] [internal quotation marks and citations omitted]; see Correction Law § 803 [4]; Matter of Thomas v Fischer, 106 A.D.3d 1343, 1344 [2013]). In view of the nature of petitioner's conviction and the mandatory character of the housing condition imposed by Executive Law § 259-c (14), we find no irrationality or abuse of discretion in the decision to withhold petitioner's good time allowance and deny him conditional release based upon his failure to find SARA-compliant housing (see Matter of Boss v New York State Div. of Parole, 89 A.D.3d 1265, 1266 [2011]; see also Matter of Breeden v Donnelli, 26 A.D.3d 660, 660-661 [2006]).

         Next, we agree with Supreme Court that, as petitioner was released from Woodbourne to SARA-compliant housing in February 2015, his challenges regarding his placement at Woodbourne and the conditions of that placement are moot (see People ex rel. Cuccio v Racette, 138 A.D.3d 1364, 1365 [2016]; People ex rel. Green v Superintendent of Sullivan Corr. Facility, 137 A.D.3d 56, 58 [2016]; People ex rel. Lashway v Wenderlich, 118 A.D.3d 1199, 1200 [2014]; Matter of McCants v Le Claire, 14 A.D.3d 736, 736 [2005]). However, we disagree with that court's finding relative to the exception to the mootness doctrine. The exception applies where there is "(1) a likelihood of repetition, either between the parties or among other members of the public; (2) a phenomenon typically evading review; and (3) a showing of significant or important questions not previously passed on, i.e., substantial and novel issues" (Matter of Hearst Corp. v Clyne, 50 N.Y.2d 707, 714-715 [1980]; accord Matter of Schermerhorn v Becker, 64 A.D.3d 843, 845 [2009]). Notably, the circumstances presented are highly similar to those in People ex rel. Green v Superintendent of Sullivan Corr. Facility (137 A.D.3d at 58), where this Court found the exception to the mootness doctrine to apply to a challenge raised by a risk level three sex offender with mental health issues who was imprisoned beyond his maximum expiration date because he had not secured appropriate housing.

         Petitioner is an indigent sex offender from the New York City metropolitan area. Respondent's submissions, which include various policy directives and other communications detailing the housing-related services that DOCCS provides to sex offenders in its custody, reveal that the problems that petitioner encountered in finding appropriate housing are all too common (see generally People v Diack, 24 N.Y.3d 674, 682-683 [2015]; Matter of Williams v Department of Corr. & Community Supervision, 136 A.D.3d 147, 149-150 [2016]). Respondent's explanations of the underlying reasons for petitioner's placement in the RTF at Woodbourne and the delay of approximately four months before he was ultimately placed in a SARA-compliant homeless shelter expressly acknowledge that many others are in the same position, particularly in the New York City metropolitan area. The ultimate placement obtained was one of only four authorized homeless shelters in New York City that accept individuals subject to SARA restrictions. We agree with petitioner that, due to the "recognized difficulty in securing acceptable housing" for persons subject to sex offender residency restrictions, there is a likelihood of repetition regarding individuals being placed in RTFs due to the failure to secure suitable housing (People ex rel. Green v Superintendent of Sullivan Corr. Facility, 137 A.D.3d at 58). Given the transitory purpose of RTFs and considering the lack of appellate precedent regarding challenges to RTF placements and programing, we further recognize that the phenomenon typically evades review (see City of New York v Maul, 14 N.Y.3d 499, 507 [2010]; see generally Penal Law § 70.45 [3]). Finally, we find the issues novel and substantial given that petitioner's challenges concern whether RTFs are serving their distinct purpose, as contrasted with confinement facilities generally (see Correction Law § 2 [6]).

         Turning first to petitioner's challenges related to Woodbourne's programming, facilities and designation as an RTF, petitioner alleges that, although he was nominally transferred to an RTF, the conditions of his placement were in fact virtually indistinguishable from continued incarceration in a prison facility. Petitioner contends that, for the period between the expiration of his sentence and his ultimate release, he was confined in a prison setting among other inmates with essentially no greater liberties or freedom. This contention was supported, at least in part, by petitioner's descriptions of the circumstances of his placement, the affidavit testimony of family members who visited him at the facility and by respondent's concession that his assigned living space was a numbered cell. Nevertheless, to the extent that petitioner has not abandoned his facial challenge to the 1984 amendment to 7 NYCRR 100.50 (c) (2) that designated Woodbourne as an RTF, we agree with Supreme Court that it is time-barred. As for petitioner's challenge to the conditions of his ...

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