                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: March 26, 2015                    518768
________________________________

In the Matter of JOHN D.
   JUSTICE,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

BRIAN FISCHER, as Commissioner
   of Corrections and Community
   Supervision,
                    Respondent.
________________________________


Calendar Date:   February 10, 2015

Before:   Lahtinen, J.P., Garry, Lynch and Devine, JJ.

                             __________


     John D. Justice, Comstock, appellant pro se.

      Eric T. Schneiderman, Attorney General, Albany (Kathleen M.
Treasure of counsel), for respondent.

                             __________


Garry, J.

      Appeal from a judgment of the Supreme Court (Melkonian,
J.), entered April 4, 2014 in Albany County, which, in a
proceeding pursuant to CPLR article 78, denied petitioner's
motion to hold respondent in civil contempt.

      Petitioner, who is currently incarcerated, applied for
conditional release and, when he did not receive a response, he
commenced a CPLR article 78 proceeding seeking to compel
respondent to rule upon his application. Supreme Court granted
the petition and issued an order that, among other things,
directed respondent to decide petitioner's application. In
connection therewith, the Department of Corrections and Community
                              -2-                518768

Supervision (hereinafter DOCCS) informed petitioner that one of
the conditions of his release was that he reside in an approved
residence. Petitioner provided DOCCS with three residential
options. None of these were found acceptable, and DOCCS thus
requested that petitioner provide further residential options.
Petitioner declined to do so and, instead, brought the instant
motion for an order seeking to hold respondent in civil contempt
for failure to comply with the court's prior order. Respondent
did not file a response. Supreme Court found that respondent had
complied with the prior order and denied petitioner's
application. Petitioner appeals.

      We affirm. In order "[t]o establish civil contempt, [the]
petitioner must demonstrate by clear and convincing evidence that
the [respondent] knowingly violated a clear and unequivocal court
order and that such conduct prejudiced his [or her] rights"
(Matter of Platten v New York State Div. of Parole, 85 AD3d 1281,
1281-1282 [2011]; see Matter of DeMeo v City of Albany, 73 AD3d
1316, 1317 [2010], lv denied 15 NY3d 819 [2010]). Petitioner has
not made that showing here. The record discloses that DOCCS
complied with the prior order by seeking to collect the
information needed from petitioner to process his application.
Petitioner did not cooperate with DOCCS by providing it with
information regarding additional residential options after the
first three were found unacceptable and, thus, he may not claim
that DOCCS failed to process his application. Accordingly,
Supreme Court properly concluded that its prior order was not
violated and denied petitioner's motion to hold respondent in
civil contempt. We have considered petitioner's remaining
contentions and find them unavailing.

     Lahtinen, J.P., Lynch and Devine, JJ., concur.
                        -3-                  518768

ORDERED that the judgment is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
