        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

669
KAH 14-02147
PRESENT: SMITH, J.P., CENTRA, PERADOTTO, SCONIERS, AND WHALEN, JJ.


THE PEOPLE OF THE STATE OF NEW YORK EX REL.
DANIEL FINLAY, PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

HONORABLE DAVID S. GIDEON, TOWN JUSTICE, TOWN
OF DEWITT, RESPONDENT-APPELLANT.
-----------------------------------------------
THE PEOPLE OF THE STATE OF NEW YORK, APPELLANT.


WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL
OF COUNSEL), FOR APPELLANT.

CERIO LAW OFFICES, SYRACUSE (DAVID W. HERKALA OF COUNSEL), FOR
RESPONDENT-APPELLANT.

STEVEN SHIFFRIN, ITHACA, FOR PETITIONER-RESPONDENT.

SATTER LAW FIRM, PLLC, SYRACUSE (MIMI C. SATTER OF COUNSEL), AND UCLA
SCHOOL OF LAW, SCOTT & CYAN BANISTER FIRST AMENDMENT CLINIC, LOS
ANGELES, CALIFORNIA (EUGENE VOLOKH, OF THE CALIFORNIA BAR, ADMITTED
PRO HAC VICE, OF COUNSEL), FOR PROFESSORS DAVID COLE, RICHARD GARNETT,
MARTIN REDISH, MARK RIENZI, JONATHAN VARAT AND JAMES WEINSTEIN, AMICUS
CURIAE.

D.J. & J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR
VERA HOUSE, INC., AMICUS CURIAE.


     Appeals from a judgment (denominated order/judgment) of the
Supreme Court, Onondaga County (John J. Brunetti, A.J.), entered March
24, 2014 in a habeas corpus proceeding. The judgment granted the
petition.

     It is hereby ORDERED that said appeals are dismissed without
costs.

     Memorandum: Petitioner commenced this habeas corpus proceeding
seeking to challenge the terms of a temporary order of protection
issued by respondent, a Town Court Justice. Respondent and the People
appeal from a judgment discharging petitioner of all restraints
imposed on his liberty by that temporary order. Initially, we agree
with the dissent that a habeas corpus petition was not the proper
vehicle to seek vacatur or review of the temporary order of protection
herein because petitioner’s liberty was not “restrained to such a
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                                                         KAH 14-02147

degree as to entitle him to the extraordinary writ of habeas corpus”
(People ex rel. Murray v Bartlett, 89 NY2d 1002, 1003). We note,
however, that the order of protection at issue has expired by its own
terms (see Matter of Justin CC. [George CC.–Tina CC.], 86 AD3d 725,
726; see generally Matter of Sarah C.B., 91 AD3d 1282, 1283), and the
Town Court that issued it has issued a permanent order of protection
in conjunction with the sentence imposed on petitioner upon his
subsequent plea of guilty. Thus, “any corrective measures which this
Court might undertake would have no practical effect” (Matter of
Leslie H. v Carol M.D., 47 AD3d 716, 716; see Matter of Kristine Z. v
Anthony C., 43 AD3d 1284, 1284, lv denied 10 NY3d 705). Finally, we
conclude that the exception to the mootness doctrine does not apply
herein (see Justin CC., 86 AD3d at 726; see generally Matter of Hearst
Corp. v Clyne, 50 NY2d 707, 714-715). We therefore dismiss the
appeals.

     All concur except CENTRA, J., who dissents and votes to reverse
in accordance with the following memorandum: The People and
respondent appeal from a judgment granting a petition for a writ of
habeas corpus and ordering that petitioner is “discharged of all
restraints imposed upon his liberty by” a temporary order of
protection issued by respondent. Respondent issued the temporary
order of protection after petitioner was arrested because of his
participation in a demonstration at a New York Air National Guard Base
(base). The temporary order of protection required petitioner to,
inter alia, stay away from the home and workplace of the installation
commander of the base.

     I agree with the majority, as do the People and petitioner, that
these appeals are moot inasmuch as the temporary order of protection
has expired. Contrary to the conclusion of the majority, however, I
further agree with the People and petitioner that the exception to the
mootness doctrine applies herein. The preliminary issue raised on
appeal by the People and respondent is whether habeas corpus relief is
available to challenge a temporary order of protection. An appeal
that is moot may nevertheless be considered on the merits when it is
demonstrated that there is “(1) a likelihood of repetition, either
between the parties or among other members of the public; (2) a
phenomenon typically evading review; and (3) a showing of significant
or important questions not previously passed on, i.e., substantial and
novel issues” (Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714-715).
In my view, the procedural issue whether a habeas corpus proceeding is
a proper vehicle to challenge a temporary order of protection is an
issue that is likely to repeat inasmuch as parties restrained by a
temporary order of protection may now, on the authority of this case
as it is decided by the majority, commence a habeas corpus proceeding
seeking vacatur or review of such orders. The issue also will
typically evade review because, by the time the appeal is before us,
the temporary order will have expired. Finally, the issue whether a
habeas corpus proceeding is the proper vehicle to seek vacatur or
review of a temporary order of protection raises a novel issue for the
courts.

     I agree with the People and respondent that habeas corpus relief
                                 -3-                           669
                                                         KAH 14-02147

is not available to petitioner because he was not sufficiently
restrained in his liberty. A writ of habeas corpus is available to
any person who is “illegally imprisoned or otherwise restrained in his
[or her] liberty with the state” (CPLR 7002 [a]). In my view,
petitioner here was not “restrained to such a degree as to entitle him
to the extraordinary writ of habeas corpus” (People ex rel. Murray v
Bartlett, 89 NY2d 1002, 1003). By way of example, habeas relief is
not available to a person released to parole supervision (see People
ex rel. McBride v Alexander, 54 AD3d 423, 424), and the level of
restraint imposed on petitioner by the temporary order of protection
is far less than that of a person subject to parole supervision. I
would therefore reverse the judgment, vacate the writ of habeas
corpus, and dismiss the petition.




Entered:   June 19, 2015                        Frances E. Cafarell
                                                Clerk of the Court
