Matter of Cooper v Goord

Matter of Cooper v Goord 2008 NY Slip Op 08225 [55 AD3d 1186] October 30, 2008 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 10, 2008

In the Matter of Eric Cooper, Appellant, v Glenn S. Goord, as Commissioner of Correctional Services, Respondent.

—[*1] Eric Cooper, Malone, appellant pro se.

Andrew M. Cuomo, Attorney General, Albany (Frank Brady of counsel), for respondent.

Appeal from a judgment of the Supreme Court (Connolly, J.), entered November 16, 2007 in Albany County, which, in a proceeding pursuant to CPLR article 78, dismissed the petition.

Petitioner pleaded guilty to burglary in the second degree and was sentenced as a second violent felony offender to seven years in prison. Although the sentencing court did not impose any period of postrelease supervision, the Department of Correctional Services calculated petitioner's time by including five years of postrelease supervision. Petitioner, in turn, commenced this CPLR article 78 proceeding challenging that determination. Supreme Court dismissed the petition for lack of personal jurisdiction and this appeal ensued.

We affirm. The record reveals, and indeed petitioner does not dispute in his brief, that petitioner failed to serve the Attorney General in compliance with the service requirements set forth in the order to show cause (see Matter of Chavis v Goord, 46 AD3d 1029, 1030 [2007]). Moreover, petitioner has made no showing that there were any obstacles created by his imprisonment which prevented him from adhering to the order's directives (see Matter of Jones v Dennison, 30 AD3d 952, 953 [2006]). Accordingly, Supreme Court properly dismissed the petition.

Cardona, P.J., Spain, Rose, Lahtinen and Malone Jr., JJ., concur. Ordered that the judgment is affirmed, without costs.