Opinion
31 KAH 20-01014
02-04-2022
The PEOPLE of the State of New York EX REL. Benjamin WELIKSON, Esq., on Behalf of Dawson Sharpe, Petitioner-Appellant, v. S. CRONIN, Superintendent Groveland Correctional Facility, and Anthony Annucci, Acting Commissioner, New York State Department of Corrections and Community Supervision, Respondents-Respondents.
PATRICIA PAZNER, NEW YORK CITY (BENJAMIN WELIKSON OF COUNSEL)), FOR PETITIONER-APPELLANT. LETITIA JAMES, ATTORNEY GENERAL, ALBANY (SARAH L. ROSENBLUTH OF COUNSEL), FOR RESPONDENTS-RESPONDENTS.
PATRICIA PAZNER, NEW YORK CITY (BENJAMIN WELIKSON OF COUNSEL)), FOR PETITIONER-APPELLANT.
LETITIA JAMES, ATTORNEY GENERAL, ALBANY (SARAH L. ROSENBLUTH OF COUNSEL), FOR RESPONDENTS-RESPONDENTS.
PRESENT: CENTRA, J.P., NEMOYER, CURRAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the amended judgment so appealed from is unanimously affirmed without costs.
Memorandum: Petitioner commenced this habeas corpus proceeding seeking the immediate release of Dawson Sharpe from the custody of the New York State Department of Corrections and Community Supervision (DOCCS) on the ground, inter alia, that he was being unlawfully held beyond the date of his conditional release upon a request from United States Immigration and Customs Enforcement (ICE) officials. Before the return date of the writ, Sharpe was released from DOCCS's custody to ICE's custody. Supreme Court dismissed the petition as moot. Contrary to petitioner's contention, the court did not improvidently exercise its discretion in declining to invoke the exception to the mootness doctrine (see Matter of Kirkland v. Annucci , 150 A.D.3d 736, 738, 54 N.Y.S.3d 40 [2d Dept. 2017], lv denied 29 N.Y.3d 918, 2017 WL 4015611 [2017] ). The exception to the mootness doctrine applies where the issue to be decided "(1) is likely to recur, either between the parties or other members of the public, (2) is substantial and novel, and (3) will typically evade review in the courts" ( Coleman v. Daines , 19 N.Y.3d 1087, 1090, 955 N.Y.S.2d 831, 979 N.E.2d 1158 [2012] ; see City of New York v. Maul , 14 N.Y.3d 499, 507, 903 N.Y.S.2d 304, 929 N.E.2d 366 [2010] ; Matter of Hearst Corp. v. Clyne , 50 N.Y.2d 707, 714-715, 431 N.Y.S.2d 400, 409 N.E.2d 876 [1980] ). While we agree with petitioner that the issue raised here will typically evade review in the courts, the issue raised is not novel. Indeed, the Second Department addressed this precise issue and concluded that "New York state and local law enforcement officers are not authorized by New York law to effectuate arrests for civil law immigration violations" ( People ex rel. Wells v. DeMarco , 168 A.D.3d 31, 34, 88 N.Y.S.3d 518 [2d Dept. 2018] ), and that it is unlawful to retain a prisoner, who would otherwise be released, pursuant to an ICE detainer (see id. at 53, 88 N.Y.S.3d 518 ). In addition, the issue is not likely to recur given respondents’ concession on appeal that "DOCCS now acknowledges that, under ... [ Wells ], it may not detain an individual solely to facilitate a transfer to federal immigration officials seeking to effectuate a final order of removal."