Opinion
2012-06-21
In the Matter of William WHEELER, Appellant, v. Brian FISCHER, as Commissioner of Corrections and Community Supervision, Respondent,
William Wheeler, Coxsackie, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
William Wheeler, Coxsackie, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Appeal from a judgment of the Supreme Court (Platkin, J.), entered June 22, 2011 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent's motion to dismiss the petition.
Petitioner, an inmate, was found guilty after three separate tier II prison disciplinary hearings of violating numerous rules, after which it was determined that he was ineligible to receive a merit time allowance because the aggregate keeplock penalties that he received as a result of the three hearings exceeded 60 days ( see7 NYCRR 280.2[b][3] ). Petitioner filed an administrative appeal and commenced this CPLR article 78 proceeding challenging respondent's ruling upholding that determination.While this proceeding was pending in Supreme Court, however, petitioner was found guilty after a tier III disciplinary hearing of violating the disciplinary rule prohibiting drug use and received a penalty that included 60 days of keeplock and a recommended loss of three months good time credit ( see7 NYCRR 280.2 [b][2] [xiii]; [3] ). Petitioner did not administratively appeal the tier III determination and respondent thereafter moved to dismiss the subject proceeding as moot. Supreme Court granted this motion, prompting this appeal.
Inasmuch as the intervening unchallenged drug use violation and accompanying penalty, standing alone, render petitioner ineligible for a merit time allowance pursuant to the relevant statute and regulations ( see Matter of Ramos v. New York State Dept. of Correctional Servs., 62 A.D.3d 1174, 1174–1175, 878 N.Y.S.2d 638 [2009];see alsoCorrection Law § 803[1][d][iv]; 7 NYCRR 280.2[b][2] [xiii]; [3] ), we agree with Supreme Court that this proceeding challenging the prior denial of merit time allowances is now moot ( see generally Matter of Justice v. Fischer, 74 A.D.3d 1648, 1648–1649, 903 N.Y.S.2d 791 [2010],lv. denied15 N.Y.3d 710, 2010 WL 4008458 [2010];Matter of Swinton v. Travis, 16 A.D.3d 851, 853, 792 N.Y.S.2d 207 [2005] ).
We have examined petitioner's remaining arguments and find them to be unpersuasive.
ORDERED that the judgment is affirmed, without costs.