Matter of Koehl v Woods

[*1] Matter of Koehl v Woods 2007 NY Slip Op 51338(U) [16 Misc 3d 1107(A)] Decided on July 10, 2007 Supreme Court, Franklin County Feldstein, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 10, 2007
Supreme Court, Franklin County

In the Matter of the Application of Edward Koehl, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Laws and Rules

against

R. K. Woods, Superintendent, Upstate Correctional Facility, Respondent.



2007-0591

S. Peter Feldstein, J.

This is a proceeding for judgment pursuant to Article 78 of the CPLR that was originated by the petition of Edward Koehl, verified on April 10, 2003 [presumably, 2007], and stamped as filed in the Franklin County Clerk's office on May 2, 2007. Petitioner, who is now an inmate at the Clinton Correctional Facility, challenged the determination that he must serve a 30-day keeplock disposition at the Upstate Correctional Facility in a Special Housing Unit environment. The Court issued an Order to Show Cause on May 8, 2007, and has received and reviewed respondent's Notice of Motion to Dismiss, supported by the affirmation of Robert C. Glennon, Esq., Assistant Attorney General, dated June 8, 2007. The Court has also received and reviewed petitioner's undated Reply thereto, received in chambers on June 27, 2007.

At the close of a Tier III Superintendent's Hearing held at the Great Meadow Correctional Facility on March 7, 2007, the petitioner was found guilty of violating inmate rule 107.11 (harassment). One component of the disposition directed that petitioner be confined in a special housing unit for two months and 26 days. The service dates for petitioner's SHU confinement ran from March 7, 2007, to June 2, 2007. On March 8, 2007, a Tier II Disciplinary Hearing was held at the Great Meadow Correctional Facility with regard to an incident that occurred on March 6, 2007. At the close of the Tier II Disciplinary Hearing the petitioner was found guilty of violating inmate rule 107.11 and a disposition was imposed confining him to keeplock status for 30 days scheduled to commence on June 7, 2007 (upon the expiration of the previously imposed SHU confinement).

The petitioner alleges that he was transferred to the Upstate Correctional Facility on March 23, 2007, where he was ". . . immediately informed that upon completion of his 90 day S.H.U. Confinement, the 30 day Keeplock sentence will commence, and that the [keeplock] confinement will be as an S.H.U. inmate, with all its provisions, penalties and limitations." In view of the foregoing, the petitioner argues that DOCS officials violated his due process rights when they effectively resentenced him to a 30-day SHU confinement [*2]rather than the 30-day keeplock confinement that was imposed upon disposition of the Tier II Disciplinary Hearing of March 8, 2007.

The respondent moves to dismiss, asserting that the petitioner's claim was not ripe for judicial review and, in any event, had been rendered moot by the June 7, 2007, transfer of petitioner from SHU/Keeplock confinement at the Upstate Correctional Facility to general confinement at the Clinton Correctional Facility. Before addressing the merits, or lack thereof, of respondent's motion, however, the Court must first address petitioner's claim, advanced in his opposing papers, that the motion to dismiss should be rejected out-of-hand as untimely.

There is no dispute that the respondent's motion papers were not mailed to the petitioner until June 8, 2007, the last day for timely service pursuant to the terms of the Order to Show Cause and one day after petitioner's transfer from Upstate to the Clinton Correctional Facility. There is likewise no dispute that respondent's motion papers were mailed to the petitioner at the Upstate Correctional Facility and, therefore, had to be forwarded to the petitioner at Clinton. The petitioner alleges that he did not receive the respondent's motion papers until June 13, 2007. The Court has no reason to doubt the accuracy of that statement. The Court finds, however, that the petitioner reached an erroneous legal conclusion that ". . . the mailing of Respondent's opposition [motion papers] on the due date cannot be considered timely served upon Petitioner." CPLR §2103(b)(2), which is applicable in this situation under the provisions of CPLR §2103(c), authorizes service by mail that is deemed complete upon mailing, rather than receipt. Accordingly, the Court concludes that petitioner's motion papers were timely served (mailed) on June 8, 2007.

The petitioner's release from SHU/Keeplock confinement at the Upstate Correctional Facility on June 7, 2007, was not occasioned by any concession on the part of DOCS with respect to the issues raised in this proceeding. Rather, such release appears to have been the result of a routine evaluation of the petitioner's behavior and demeanor while in SHU confinement conducted by the Disciplinary Review Committee at Upstate pursuant to that facility's policy and procedure. According to the relevant evaluation report, the committee determined that the petitioner was eligible for early transfer consideration from Upstate five weeks prior to his otherwise-scheduled July 7, 2007, release date. The committee recommended such early transfer consideration and that recommendation was affirmed by the respondent Woods, as facility superintendent, on May 9, 2007. According to the respondent, upon petitioner's resulting June 7, 2007, transfer from SHU/Keeplock confinement at the Upstate Correctional Facility to general confinement at the Clinton Correctional Facility ". . . the issue of whether he could serve his keeplock penalty in Upstate SHU pursuant to 7 NYCRR 301.6(a)(2) has become academic, moot, and [an] abstract question upon which this Court is forbidden' to pass. Matter of Hearst Corp. v. Clyne, 50 NY2d 707, 713 (1980)." The Court agrees. See Shanholtzer v. Selsky, 291 AD2d 588.

In his opposing papers the petitioner asserts that if the 30-day keeplock confinement had not been added on to his SHU time he would have been considered for early transfer out of the Upstate Correctional Facility approximately one month earlier. Thus, he concludes, ". . . the harm caused to Petitioner by forcing him to remain in SHU with all its limitations and restrictions did occur." The petitioner's assertion, however, is irrelevant in the context of a CPLR Article 78 proceeding. Even if the Court were to conclude that the [*3]petitioner was being unlawfully held in keeplock confinement at the Upstate Correctional Facility, the only remedy that this Court could have afforded him would have been a judgment directing the immediate termination of such confinement and a transfer of the petitioner out of the SHU environment. Since the petitioner has already been transferred into general confinement at the Clinton Correctional Facility there is no further relief which the Court could grant.

Based upon all of the above, it is, therefore, the decision of the Court and it is hereby

ORDERED AND ADJUDGED, that the respondent's motion to dismiss is granted; and it is further

ORDERED AND ADJUDGED, that the petition is dismissed as moot.

Dated:July 10 , 2007 at

Indian Lake, New York.__________________________

S. Peter Feldstein

Acting Supreme Court Justice