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This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
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No. 82
The People &c. ex rel. Bourlaye T.,
            Appellant,
        v.
William J. Connolly, &c.,
            Respondent.




          Ana Vuk-Pavlovic, for appellant.
          Jason Harrow, for respondent.




MEMORANDUM:
          The order of the Appellate Division should be affirmed,
without costs.
          In 1988, petitioner, a foreign national, pleaded guilty
to attempted murder in the second degree, rape in the first

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degree, sexual abuse in the first degree, burglary in the first
degree, and attempted burglary in the second degree.       He was
sentenced to a prison term of 12 to 36 years.
               After serving approximately 25 years in prison,
petitioner was conditionally released from the custody of the New
York State Department of Corrections and Community Supervision
(DOCCS) and placed in the custody of the United States Department
of Homeland Security, Immigration and Customs Enforcement (ICE)
for deportation from the United States.1       Contemporaneously, he
began serving a term of parole under the supervision of the New
York State Division of Parole.       In December 2012, petitioner was
released to federal immigration parole after federal officials
were unable to procure the necessary documentation to deport
him.2       Following his release, petitioner was taken into custody
by state parole officers and transported to a state correctional
facility, despite the fact that there were no allegations that he
had violated a condition of his parole.
               In January 2013, petitioner commenced this proceeding
pursuant to CPLR article 70 seeking a writ of habeas corpus,
contending that he was being confined unlawfully.       On the same
day, the State filed a civil management petition pursuant to


        1
        ICE could not deport petitioner any earlier, as federal law
prohibits the removal of incarcerated aliens (see 8 USC § 1231 [a]
[4]).
        2
        In the event ICE is unable to deport an alien after six months
of post-removal order detention, he must be released on a form of
parole supervision (see Zadvydas v Davis, 533 US 678, 701 [2001]).

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Mental Hygiene Law article 10 and received judicial authorization
to temporarily retain petitioner in custody pending a probable
cause hearing.   Following the hearing, the court found probable
cause to believe that petitioner was a "sex offender requiring
civil management" (Mental Hygiene Law § 10.06 [k]) and directed
that he be committed to a secure treatment facility pending
trial.
           The State moved to dismiss the habeas proceeding on the
ground that it had been rendered moot by the entry of the
probable cause order, which allowed the State to detain
petitioner pending trial.   Supreme Court granted the State's
motion and dismissed the proceeding.   The Appellate Division
affirmed (see 119 AD3d 825 [2d Dept 2014]).
           Petitioner argues that Supreme Court wrongfully denied
and dismissed as moot his petition for a writ of habeas corpus
because he remains in State custody pursuant to an illegal
arrest.   He also contends that the illegal arrest rendered the
article 10 proceeding against him jurisdictionally void, and,
therefore, cannot justify his continued incarceration.    While the
State does not defend as lawful the procedure utilized for
petitioner's initial return to custody, it maintains that the
issue is insignificant because the probable cause order provides
an independent and superseding basis for his confinement.
           As noted by the State, petitioner's habeas petition
challenges only his initial arrest and detention.   Since


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petitioner is currently being held pursuant to the probable cause
order, the initial detention no longer serves as the authority
for his continuing confinement.     Therefore, the issue raised in
this habeas proceeding is academic (see Matter of Hearst Corp. v
Clyne, 50 NY2d 707 [1980]).
            Nor does this appeal present a question that would
warrant our application of an exception to the mootness doctrine.
The State articulated that it has since corrected its practices
relating to the commencement of civil commitment proceedings
against sex offenders facing deportation.         Furthermore, the
article 10 proceeding itself is the proper forum for petitioner
to challenge the validity of the probable cause order and the
underlying article 10 petition (see Mental Hygiene Law §§ 10.06-
10.08, 10.13).
*   *   *    *   *   *   *    *    *      *   *   *   *   *   *      *   *
Order affirmed, without costs, in a memorandum. Chief Judge
Lippman and Judges Read, Pigott, Rivera, Abdus-Salaam, Stein and
Fahey concur.

Decided June 4, 2015




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