Matter of Conroy v Fischer

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Matter of Conroy v Fischer 2012 NY Slip Op 33059(U) December 5, 2012 Supreme Court, St. Lawrence County Docket Number: 135918 Judge: S. Peter Feldstein Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] STATE OF NEW YORK SUPREME COURT COUNTY OF ST. LAWRENCE -----------------------------------------------------X In the Matter of the Application of JAMES CONROY,#08-A-5652, Petitioner, for Judgment Pursuant to Article 78 of the Civil Practice Law and Rules DECISION AND JUDGMENT RJI #44-1-2011-0286.13 INDEX #135918 ORI # NY044015J -againstBRIAN S. FISCHER, Commissioner, NYS Department of Correctional Services, Respondent. -----------------------------------------------------X This proceeding was originated by the Petition For Writ of Habeas Corpus of James Conroy, verified on April 11, 2011 and filed in the St. Lawrence County Clerk s office on April 15, 2011. Petitioner, who was an inmate at the Gouverneur Correctional Facility, purported to challenge his continued incarceration in the custody of the New York State Department of Corrections and Community Supervision (DOCCS). In this regard petitioner asserted that for a variety of reasons he was denied the opportunity to participate in any early release program. More specifically, petitioner challenged the determination denying his application to participate in the DOCCS Shock Incarceration Program as well as the failure to grant him access to any avenue leading to a merit time allowance credit. An Order to Show Cause was issued on April 22, 2011 and as a part thereof this proceeding was converted into a proceeding for judgment pursuant to Article 78 of the CPLR. The Court received and reviewed respondent s Answer and Return, verified on 1 of 6 [* 2] June 24, 2011, as well as petitioner s Reply and Supplemental Reply, filed in the St. Lawrence County Clerk s office on July 11, 2011 and July 25, 2011, respectively. By Decision and Judgment dated September 30, 2011 the petition was dismissed. Petitioner then moved for reconsideration with respect to the Decision and Judgment of September 30, 2011. By Decision and Order dated April 2, 2012 petitioner s application was granted, the Decision and Judgment of September 30, 2011 was vacated and this proceeding was converted into a hybrid action for the declaratory judgment/CPLR Article 78 proceeding. The Court has since received and reviewed respondent s Supplemental Verified Answer and Return, verified on May 17, 2012, as well as petitioner s Supplemental Reply, verified on June 8, 2012 and filed in the St. Lawrence County Clerk s office on June 12, 2012. On March 25, 2004 petitioner was sentenced in Supreme Court, New York County, to a controlling indeterminate sentence of 4 to 12 years upon his convictions of the crimes of Grand Larceny 1° (three counts),Tampering With Physical Evidence (two counts), and Conspiracy 4°. Execution of the judgment of conviction/sentencing was apparently stayed pending appeal pursuant to Criminal Procedure Law §460.50. By decision dated July 15, 2008 the Appellate Division, First Department, modified the judgment of conviction/sentencing by vacating the tampering convictions and dismissing the two counts of the indictment underlying the tampering charges. The judgment of conviction/sentencing was otherwise affirmed. People v. Conroy, 53 AD3d 438, lv den 11 NY3d 735, cert den 129 S Ct 579. Petitioner s modified sentence, which remained a controlling indeterminate sentence of 4 to 12 years based upon the Grand Larceny 1° convictions, was executed on October 17, 2008. On October 24, 2008 petitioner was 2 of 6 [* 3] received into DOCCS custody certified as entitled to 18 days of jail time credit. At that time DOCCS officials calculated the maximum expiration, parole eligibility and merit eligibility dates of petitioner s multiple sentences as October 5, 2020, October 5, 2012 and February 1, 2012, respectively. Petitioner, who was born on February 21, 1940 and was thus 68 years old when he entered state custody, applied to participate in the DOCCS Shock Incarceration Program. Inmates who participate in the program . . . serve a period of six months in a shock incarceration facility, which shall provide rigorous physical activity, intensive regimentation and discipline and rehabilitation therapy and programing . . . Correction Law §865(2). Upon successful completion of the shock incarceration program an inmate becomes immediately eligible for conditional release to parole supervision. See Correction Law §867(4). Eligibility for participation in the program, however, is statutorily limited to inmates less than 50 years of age (see Correction Law §865(1)) and petitioner s application to participate in the shock incarceration program was denied based upon his age. Under the relevant provisions of Correction Law §803(1)(d)(iii) an eligible DOCCS inmate may earn a merit time allowance credit against the minimum period of his/her indeterminate sentence totaling one-sixth of the minimum period. Such merit time allowance may be granted when an inmate successfully participates in the work and treatment program assigned pursuant to section eight hundred five of this article and when such inmate obtains a general equivalency diploma, an alcohol and substance abuse treatment certificate, a vocational trade certificate following at least six months of 3 of 6 [* 4] vocational programming or performs at least four hundred hours of service as part of a community work crew. Correction Law §803(1)(d)(iv) (emphasis added). By memorandum dated May 18, 2009 petitioner was advised by a correction counselor as follows: There are four ways to earn a merit time certificate. Complete a GED while being incarcerated, complete six months of a vocational program and earn one job title, complete ASAT [Alcohol and Substance Abuse Treatment programing] or complete 400 hours of outside clearance. School, vocational and ASAT are not program needs for you. Therefore the only way for you to meet merit time criteria is outside clearance - 400 hrs. Records indicate that you were denied outside clearance [apparently on March 25, 2009]. You are not allowed to reapply. There are no other options to earn merit time criteria available to you. On February 1, 2010 petitioner filed an inmate grievance complaint designated Grievance No. GOV-15204/10. In his grievance complaint petitioner asserted, in relevant part, as follows: I am a non-violent offender with a clean prison record. Gouverneur Correctional Facility and New York State have discriminated against me because of my disabilities, my age, my education and my physical condition, by preventing me from utilizing any program for early release offered by New York State. The programs that have discriminated against me, in spite of repeated efforts to participate, include: - The Shock Incarceration Program, which allows participation by persons with disabilities; and - The programs and activities for earning Merit Time. These repeated denials . . . are violations of the Constitutions of The United States and New York State, The American with Disabilities Act and The New York State Human Rights Law, among others. Had I not been discriminated against because of my disabilities, my period of incarceration could have already have ended. In his grievance complaint petitioner specifically requested . . . immediate release from incarceration . . . The Inmate Grievance Resolution Committee (IGRC) recommended that petitioner . . . should not be discriminated against based on his age and education level. Grievant 4 of 6 [* 5] [petitioner] should be afforded the opportunity to earn Merit Time Credit. By decision dated February 18, 2010 the Superintendent of the Gouverneur Correctional Facility disagreed with the IGRC response . . . to the extent that the grievant s requested action cannot be granted by the IGRC or by the Facility Administration. MERIT TIME eligibility and criteria are clearly elucidated in Directive #4790. This is clearly a departmental issue that cannot be addressed at the facility level. Petitioner took an administrative appeal from the superintendent s determination and by decision dated April 28, 2010 the Inmate Grievance Program Central Office Review Committee (CORC) denied petitioner s grievance as follows: Upon full hearing of the facts and circumstances in the instant case, and upon recommendation of Department s Counsel, the action requested herein is hereby denied. CORC upholds the determination of the Superintendent for the reasons stated. Contrary to the grievant s assertions, CORC has not been presented with sufficient evidence to substantiate any discrimination by staff. With respect to grievance appeal, he is not eligible for Shock program due to his age. CORC further notes that he is not eligible for Merit Time because he does not have an academic, vocational or substance abuse need and has been denied outside clearance. The main argument advanced in the petition herein is that the statutory provisions precluding petitioner s acceptance into the DOCCS Shock Incarceration Program (Correction Law §865(1)) and blocking his access to any avenue leading to a merit time credit allowance (Correctional Law §803(1)(d)(iv)) are either unconstitutional or in conflict with federal and/or state statutes. If petitioner s arguments prevailed with respect to Correction Law §865(1) he would have been eligible to participate in some form 5 of 6 [* 6] of the DOCCS Shock Incarceration Program and, if he successfully completed the program, would have been immediately eligible for release to community supervision. If petitioner s argument prevailed with respect to Correction Law §803(1)(d)(iv) he would have been eligible to participate in some form of merit release program and, if he successfully completed such program, would have been eligible for discretionary parole release as of his February 1, 2012 merit eligibility date. Notwithstanding the foregoing, during the pendency of this proceeding, on October 5, 2012, petitioner was apparently released from DOCCS custody to community supervision by discretionary action of the Parole Board upon reaching his regular parole eligibility date. This Court therefore finds that petitioner has received all of the relief (indeed, more than all of the relief) which could have been granted had petitioner prevailed in connection with the arguments advanced herein. This proceeding must therefore be dismissed as moot. Based upon all of the above, it is, therefore, the Decision of the Court and it is hereby ADJUDGED, that the petition is dismissed. Dated: December 5, 2012 at Indian Lake, New York ___________________________ S. Peter Feldstein Acting Justice, Supreme Court 6 of 6

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