Opinion
DOCKET NO. A-5451-14T1
08-17-2016
ATOY SMITH, Plaintiff-Appellant, v. GEO, INC. and SHELDON VICKERS, Defendants-Respondents.
Murphy & Woyce, attorneys for appellant (Michael C. Woyce and Joseph S. Murphy, on the brief). Christopher S. Porrino, Attorney General, attorney for respondent New Jersey State Parole Board (Lisa A. Puglisi, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Manahan. On appeal from the Superior Court of New Jersey, Law Division, Essex County. Murphy & Woyce, attorneys for appellant (Michael C. Woyce and Joseph S. Murphy, on the brief). Christopher S. Porrino, Attorney General, attorney for respondent New Jersey State Parole Board (Lisa A. Puglisi, Assistant Attorney General, of counsel; Christopher C. Josephson, Deputy Attorney General, on the brief). PER CURIAM
Petitioner Atoy Smith appeals from the Law Division's July 6, 2015 order denying his application for a writ of habeas corpus for lack of jurisdiction.
In 1998, Smith was convicted of sexual assault under N.J.S.A. 2C:14-2, for which he was sentenced to a five-year term of imprisonment, mandatory registration under Megan's Law, and community supervision for life (CSL) under N.J.S.A. 2C:43-6.4. In June 2015, after Smith was arrested and released on bail in connection with an unrelated offense, his parole officer required him to enroll in Logan Hall, a residential community release program in Newark.
Smith filed applications for the writ on June 4 and 23, 2015. The second was filed after he was transferred to a different facility in Newark, operated by defendant GEO, Inc. Smith alleged that both Logan Hall and the GEO facility were private jails and he was being imprisoned without due process of law.
The Parole Board contended that the trial court lacked jurisdiction to review its action, and that the Board was authorized to require Smith, as an offender subject to CSL, to complete a "residential counseling or treatment program."
At a hearing on June 26, 2015, the court ruled that it lacked jurisdiction to grant the writ, concluding that exclusive jurisdiction to hear an appeal from a Board action rested with the Appellate Division. The court entered an accompanying order denying Smith's application for a writ of habeas corpus.
On appeal, Smith renews his argument that the trial court had jurisdiction to rule on his application for the writ and the writ should have issued because he was imprisoned illegally. Smith states the residential program lasted ninety days and he was released from the GEO Inc. facility "on or about September 1, 2015, having served 90 days." However, he contends he "remains subject to at anytime being returned to such a facility."
The Parole Board urges us to dismiss the appeal as moot. We agree. "An issue is moot when the decision sought in a matter, when rendered, can have no practical effect on the existing controversy." Greenfield v. N.J. Dep't of Corr., 382 N.J. Super. 254, 257-58 (App. Div. 2006) (internal quotation marks and citation omitted). As a consequence of Smith's release in September 2015, our consideration of his appeal will have no practical effect on the controversy over Smith's placement in the residential program. Cf. Oxfeld v. N.J. State Bd. of Educ., 68 N.J. 301, 303-04 (1975) (dismissing as moot appeal by students who challenged leafleting regulation, but had graduated by the time the appeal was heard).
Also, we are not persuaded that the substantive issues raised on appeal are likely to recur but escape review. Cf. Zirger v. Gen. Accident Ins. Co., 144 N.J. 327, 330 (1996) (court may decide a moot issue of "substantial importance" if it is "likely to reoccur but capable of evading review"). Although Smith asserts he is subject to enrollment in a similar program in the future, nothing in the record establishes that the likelihood of this happening is anything but hypothetical. The Board suggests that Smith may avoid the risk by abiding by the conditions of CSL. Thus, this issue is not "likely to reoccur." Nor is the issue capable of evading review. In the event Smith is enrolled in a similar program in the future, he may seek emergent relief from this court if, as in this case, he would likely be released before his appeal would be decided in the normal course.
Dismissed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION