                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: September 22, 2016                   522408
________________________________

THE PEOPLE OF THE STATE OF
   NEW YORK ex rel. RONALD
   DAVIDSON,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

JOSEPH SMITH, as Superintendent
   of Shawangunk Correctional
   Facility, et al.,
                    Respondents.
________________________________


Calendar Date:   August 8, 2016

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

                             __________


     Ronald Davidson, New York City, appellant pro se.

      Eric T. Schneiderman, Attorney General, Albany (Robert M.
Goldfarb of counsel), for respondents.

                             __________


      Appeal from a judgment of the Supreme Court (LaBuda, J.),
entered October 6, 2015 in Sullivan County, which dismissed
petitioner's application, in a proceeding pursuant to CPLR
article 70, without a hearing.

      In 1976, petitioner was sentenced to three consecutive
terms of 25 years to life in prison after he was convicted of
three counts of murder in the second degree. In July 2013, he
appeared before the Board of Parole seeking to be released to
parole supervision. The Board denied his request but, given that
he was a citizen of Canada as well as the United States, granted
him conditional release for deportation only (hereinafter CRDO)
to occur after the date of the Board's decision but before
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petitioner's next appearance in July 2015. In 2014, after it was
determined that petitioner was ineligible for CRDO under
Executive Law § 259-i (2) (d) (i), a temporary suspension notice
was issued and a hearing was conducted to consider rescission of
the Board's July 2013 decision. At the conclusion of the
hearing, the Board issued a May 2014 decision modifying its prior
decision, by rescinding that portion that granted petitioner
CRDO, but upholding the remainder. This decision was
subsequently affirmed on administrative appeal. Petitioner then
brought this application for a writ of habeas corpus challenging
the May 2014 decision. Following joinder of issue, Supreme Court
dismissed the application, and petitioner now appeals.

      Although petitioner was released to parole supervision
during the pendency of this appeal, he was sentenced to a maximum
of life in prison, and his maximum expiration date remains
affected by the issues presented herein. Thus, the appeal is not
moot (see People ex rel. Albert v Schneiderman, 120 AD3d 856, 856
[2014]; People ex rel. Speights v McKoy, 88 AD3d 1039, 1040
[2011]), and we shall consider this habeas corpus proceeding as a
proceeding brought pursuant to CPLR article 78 (see CPLR 103 [c];
People ex rel. Speights v McKoy, 88 AD3d at 1040; People ex rel.
Howard v Yelich, 87 AD3d 772, 773 [2011]).

      Turning to the merits, Executive Law § 259-i (2) (d) (i)
provides, in relevant part, that, in order for an inmate to be
eligible for CRDO, a final order of deportation must be issued
against him or her and the inmate must not have been convicted of
an A-I felony offense, other than one defined in Penal Law
article 220, or a violent felony offense as defined in Penal Law
§ 70.02. Here, petitioner concedes that a final order of
deportation has not been and cannot be issued against him due to
obstacles presented in renouncing his United States citizenship.
In addition, he was convicted of three counts of murder in the
second degree (see Penal Law § 125.25), which are all
disqualifying A-I felonies (see Matter of Howithi v Travis, 19
AD3d 727 [2005], lv dismissed 5 NY3d 821 [2005]). As petitioner
is thus statutorily ineligible for CRDO, the Board acted properly
in modifying its July 2013 decision to conform with the
requirements of law (see 9 NYCRR 8000.4).
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      Contrary to petitioner's claim, the Board did not otherwise
find that he was fit for parole release, as the July 2013
decision states that petitioner's release "is not compatible with
the welfare of society" and sets forth the factors considered in
reaching this conclusion. We do not find that the Board's
subsequent May 2014 decision was affected by "'irrationality
bordering on impropriety'" (Matter of Silmon v Travis, 95 NY2d
470, 476 [2000], quoting Matter of Russo v New York State Bd. of
Parole, 50 NY2d 69, 77 [1980]), and, therefore, we do not disturb
it. Petitioner's remaining contentions have been considered and
are unavailing.

     Garry, J.P., Lynch, Rose, Devine and Aarons, JJ., concur.



     ORDERED that the judgment is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
