People ex rel. Cuccio v. Racette , 28 N.Y.S.3d 924 ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: April 28, 2016 521211
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THE PEOPLE OF THE STATE OF
NEW YORK ex rel. ROCCO
CUCCIO,
Appellant,
v MEMORANDUM AND ORDER
STEPHEN RACETTE, as
Superintendent of Clinton
Correctional Facility,
Respondent.
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Calendar Date: March 24, 2016
Before: McCarthy, J.P., Egan Jr., Rose, Devine and Clark, JJ.
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Ellen O'Hara Woods, Blauvelt, for appellant.
Eric T. Schneiderman, Attorney General, Albany (Frank Brady
of counsel), for respondent.
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Clark, J.
Appeal from a judgment of the Supreme Court (Feldstein,
J.), entered August 22, 2014 in Clinton County, which dismissed
petitioner's application for a writ of habeas corpus, in a
proceeding pursuant to CPLR article 70, without a hearing.
In October 2001, petitioner was sentenced to 15 years in
prison upon his conviction of manslaughter in the first degree.
The sentence did not include the required period of postrelease
supervision and, as a result, petitioner was resentenced pursuant
to Penal Law § 70.85 to the originally imposed determinate
sentence without any period of postrelease supervision.
-2- 521211
Petitioner's conditional release date was March 4, 2014. He,
however, declined conditional release because he would be subject
to certain conditions imposed by the Board of Parole until he
reached the maximum expiration date of his sentence. Instead, he
brought this application pursuant to CPLR article 70 for a writ
of habeas corpus. Following joinder of issue, Supreme Court
dismissed the application without a hearing and this appeal
ensued.
Respondent has advised this Court that petitioner was
conditionally released from custody in November 2014. In view of
this, habeas corpus relief is no longer available and the appeal
must be dismissed as moot (see People ex rel. Barnes v Williams,
52 AD3d 1228, 1228 [2008]; People ex rel. Graham v New York State
Dept. of Corrections, 280 AD2d 768, 768 [2001]).
McCarthy, J.P., Egan Jr., Rose and Devine, JJ., concur.
ORDERED that the appeal is dismissed, as moot, without
costs.
ENTER:
Robert D. Mayberger
Clerk of the Court