                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: January 21, 2016                   521148
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK ex rel. WILLIAM
   GREEN,
                    Appellant,
      v                                     OPINION AND ORDER

SUPERINTENDENT OF SULLIVAN
   CORRECTIONAL FACILITY
   et al.,
                    Respondents.
________________________________


Calendar Date:   November 24, 2015

Before:   Garry, J.P., Rose, Lynch, Devine and Clark, JJ.

                             __________


      Center for Appellate Litigation, New York City (Jill K.
Sanders of counsel), for appellant.

      Eric T. Schneiderman, Attorney General, Albany (Martin A.
Hotvet of counsel), for respondents.

                             __________


Lynch, J.

      Appeal from a judgment of the Supreme Court (LaBuda, J.),
entered April 27, 2015 in Sullivan County, which denied
petitioner's application for a writ of habeas corpus, in a
proceeding pursuant to CPLR article 70, without a hearing.

      In 2013, petitioner was convicted of attempted sexual abuse
in the first degree, unlawful imprisonment in the second degree
(two counts), endangering the welfare of a child and public
lewdness and was sentenced to three years in prison, followed by
seven years of postrelease supervision (hereinafter PRS). He was
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subsequently adjudicated a risk level III sexually violent
offender pursuant to the Sex Offender Registration Act (see
Correction Law art 6-C). It is not disputed that petitioner was
not released either on his conditional release date or on
February 17, 2015, his maximum expiration date. In March 2015,
he commenced this habeas corpus proceeding challenging his
continued incarceration at Sullivan Correctional Facility, a
maximum security facility (see 7 NYCRR 100.117). Supreme Court
denied the application on the grounds that petitioner had not
secured suitable housing in light of his status as a risk level
III sex offender (see Executive Law § 259-c), and that
petitioner's release to a residential treatment facility
(hereinafter RTF) (see Penal Law § 70.45 [3]) was dependent upon
pending medical clearance by the Office of Mental Health.
Petitioner now appeals.

      In October 2015, during the pendency of this appeal,
Supreme Court issued an order directing petitioner to receive and
accept assisted outpatient treatment pursuant to Mental Hygiene
Law § 9.60, and he was released from Sullivan Correctional
Facility to an approved residence. Accordingly, because
petitioner is no longer in custody, we agree with respondents
that his petition seeking a writ of habeas corpus is moot (see
People ex rel. Lashway v Wenderlich, 118 AD3d 1199, 1200 [2014]).
We find, however, that the issue presented – whether respondent
Department of Corrections and Community Supervision (hereinafter
DOCCS) was authorized to retain petitioner in a maximum security
facility past his maximum expiration date – is significant, will
typically evade appellate review and is likely to recur given the
prevalence of mental health issues among the state's prison
population and the recognized difficulty in securing acceptable
housing for risk level III sex offenders. As such, we conclude
that the exception to the mootness doctrine applies (see Matter
of Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]; Matter of Lopez
v Evans, 25 NY3d 199, 204 n 3 [2015]). Because petitioner no
longer requires relief pursuant to CPLR article 70, we will
convert the proceeding to an action for declaratory judgment (see
CPLR 103 [c]; People ex rel. Delia v Munsey, 26 NY3d 124, 129 n 2
[2015]; People ex rel. McManus v Horn, 18 NY3d 660, 663-664 n 2
[2012]; Matter of State of New York v Cuevas, 49 AD3d 1324, 1326
[2008]).
                              -3-                521148

      There is no dispute here that, due to petitioner's status
as a risk level III sex offender, his release was subject to the
mandatory condition that he have suitable housing located more
than 1,000 feet from school grounds (see Executive Law § 259-c
[14]; People v Diack, 24 NY3d 674, 681 [2015]). Further,
petitioner concedes that the Board of Parole (hereinafter the
Board) was authorized to order, on January 15, 2015, that he be
transferred to an RTF (see Penal Law § 70.45 [3]; Correction Law
§ 73 [10]). In response to the petition, respondents explain
that petitioner was assigned, but never actually transferred, to
Woodbourne Correctional Facility, an RTF, due to an unspecified
mental health condition.1 Accordingly, there is no dispute that
petitioner remained confined in a maximum security correctional
facility for more than eight months past the expiration of his
three-year determinate sentence. Respondents provide no
convincing authority for this unilateral decision, nor do we
discern any.

      We have previously held that the Board has discretion to
deny parole release to an inmate who has not secured an approved
residence on his or her conditional release date (see Matter of
Boss v New York State Div. of Parole, 89 AD3d 1265, 1266 [2011]).
In contrast, we recently held that DOCCS does not have the
authority to retain an inmate beyond the inmate's maximum
expiration date in order to finalize the terms of PRS, because it
was conclusively bound by the sentence and commitment order
(Miller v State of New York, 124 AD3d 997, 999 [2015]). In
Miller, however, the inmate was convicted of a drug-related


    1
        The record includes conflicting affidavits indicating
that petitioner was transferred to an RTF and that he was not
transferred because the proposed RTF could not accommodate his
purported mental health needs. Woodbourne Correctional Facility
is a medium security correctional facility used for confinement
and as an RTF (see 7 NYCRR 100.50). Respondents do not explain
why petitioner could not be transferred to another RTF (see
generally 7 NYCRR part 100), in particular, Mid-State
Correctional Facility, which is classified as an RTF "to
temporarily house certain parolees in accordance with [Correction
Law § 73 (10)]" (7 NYCRR 100.111).
                              -4-                521148

charge and, thus, was not subject to the Sex Offender
Registration Act residency mandate. Under the circumstances
presented, we find that when a risk level III sex offender
reaches his or her maximum expiration date, DOCCS must release
the individual to either an approved residence or to an RTF.
Where an individual needs mental health treatment not otherwise
available at an RTF, DOCCS must, prior to the release date, seek
a court order authorizing continued hospitalization pursuant to
Mental Hygiene Law article 9 or admission to a secure detention
facility pursuant to Mental Hygiene Law article 10 (see
Correction Law § 404).

      We reject respondents' argument that DOCCS was statutorily
authorized to continue petitioner's incarceration even throughout
the entire PRS period if an approved residence could not be
located. A person released to PRS remains "in the legal custody
of [DOCCS]" (Executive Law § 259-i [2] [b]), but the term "legal
custody" is expressly distinct from "imprisonment in the custody
of [DOCCS]" (id.; see e.g. People v Brown, 25 NY3d 247, 250
[2015]). Moreover, respondents' interpretation conflicts with
Executive Law § 259-c (14), which authorizes a transfer to an RTF
of a person "released" and subject to a period of PRS. We also
recognize that Correction Law § 112 empowers DOCCS with extensive
authority to manage and control a person's release into the
community, but the statute makes a specific distinction between
inmates confined in a correctional facility (see Correction Law §
112 [1]) and persons released on community supervision (see
Correction Law § 112 [2]).

      We are mindful that the dilemma presented is no doubt a
consequence of the difficulty in finding acceptable housing for
sex offenders (see People v Diack, 24 NY3d at 682-684). Public
safety unquestionably remains the primary concern in the
management of sex offenders, but the "accepted wisdom in the
criminal justice community and among experts that offenders are
less likely to recidivate when they are provided with suitable
housing and employment" is also recognized (Governor's Mem
approving L 2008, ch 568, 2008 McKinney's Session Laws of NY at
1668; see 9 NYCRR 8002.7 [c], [e]). Accordingly, we reiterate
that, although petitioner is obligated to identify suitable
housing, DOCCS remains statutorily obligated to assist in the
                              -5-                  521148

process (see Correction Law §§ 201 [5]; 203 [1]; Executive Law
§ 243 [4]; 9 NYCRR 365.3 [d] [5]; 8002.7 [d] [5]).

     Garry, J.P., Rose, Devine and Clark, JJ., concur.



      ORDERED that the judgment is reversed, on the law, without
costs, proceeding converted to an action for declaratory judgment
and it is declared that where a person's sentence has expired and
his or her release is subject to the mandatory condition set
forth in Executive Law § 259-c (14), that person must be released
to either suitable housing or a residential treatment facility
pursuant to Penal Law § 70.45 (3) and Correction Law § 73 (10) or
be subject to the provisions of Correction Law § 404.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
