People ex rel. Smith v Cully

People v Cully 2013 NY Slip Op 08694 Released on December 27, 2013 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Released on December 27, 2013
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND VALENTINO, JJ.
1218 KAH 12-02067

[*1]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.


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 AD3d 1410, 1410, lv denied 19 NY3d 807; People ex rel. Kendricks v Smith, 52 AD2d 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 NY2d 707, 714-715).
Entered: December 27, 2013
Frances E. Cafarell
Clerk of the Court