You are here: / / ONCE A COURT SENTENCES A DEFENDANT TO SHOCK INCARCERATION, THE DEPARTMENT...
,

ONCE A COURT SENTENCES A DEFENDANT TO SHOCK INCARCERATION, THE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION (DOCCS) DOES NOT HAVE THE AUTHORITY TO DETERMINE THE DEFENDANT IS NOT ELIGIBLE; APPEAL HEARD AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (THIRD DEPT).

The Third Department, in full-fledged opinion by Justice Reynolds Fitzgerald, determined the Department of Corrections and Community Supervision (DOCCS) did not have the authority to find the peititioner was not eligible for the shock incarceration based upon his drug-related prison disciplinary history. Although the appeal was moot because petitioner had completed the program, the appeal was heard as an exception to the mootness doctrine because the scenario is likely to recur:

Once an inmate has been judicially ordered into the program, DOCCS’ participation under Penal Law § 60.04 (7) is expressly limited to its administration of the program, i.e., the completion, discipline and removal of an inmate from the program. If the Legislature intended DOCCS to have administrative discretion as to the eligibility criteria, it could have said so. It is a canon of statutory interpretation that a court cannot by implication supply in a statute a provision that it is reasonable to suppose the Legislature intended to omit (see McKinney’s Cons Laws of NY, Statutes § 74). The doctrine of expressio unius est exclusio alterius applies. The specification that DOCCS shall oversee completion, discipline and removal from the program implies in the strongest sense that the omission of DOCCS’ administrative eligibility regulation was intentional and not inadvertent … . Matter of Matzell v Annucci, 2020 NY Slip Op 01425. Third Dept 2-27-20

 

You might also like
ON APPEAL, THE ATTORNEY FOR THE CHILD DID NOT FULFILL HIS OBLIGATION TO CONSULT WITH THE CHILDREN TO DETERMINE THEIR WISHES OR TO ADEQUATELY EXPLAIN WHY CONSULTATION WAS NOT POSSIBLE; HE WAS RELIEVED OF HIS ASSIGNMENT (THIRD DEPT).
AFTER THE INITIAL INVESTIGATION AT THE SCENE AND AFTER DEFENDANT WAS HANDCUFFED AND SEATED IN THE BACK OF THE POLICE CAR, THE OFFICER ASKED DEFENDANT “WHAT HAPPENED?”; DEFENDANT’S RESPONSE SHOULD HAVE BEEN SUPPRESSED; CONVICTION REVERSED (THIRD DEPT).
THE INDICTMENT CHARGING PROMOTING PRISON CONTRABAND WAS JURISDICTIONALLY DEFECTIVE BECAUSE IT ALLEGED DEFENDANT POSSESSED LESS THAN 25 GRAMS OF MARIJUANA WHICH DOES NOT MEET THE DEFINITION OF ‘DANGEROUS CONTRABAND,” AN ELEMENT OF THE OFFENSE (THIRD DEPT).
THE DIFFERENT PURPOSES OF THE TERMS “LOSS OF WAGE-EARNING CAPACITY” AND “WAGE-EARNING CAPACITY” EXPLAINED.
MOTHER’S PETITION TO MODIFY VISITATION WITH HER DAUGHTER SHOULD HAVE BEEN GRANTED, MOTHER WAS SUCCESSFULLY CONTROLLING HER ADDICTION AND WAS MAINTAINING A FULL TIME JOB.
Criteria for Grant of Visitation to Grandparent When Both Parents Alive
Claimant Who Cannot Afford Child Care Is Unavailable for Work and Is Not Entitled to Unemployment Insurance Benefits
No Standing to Bring an Action Contending Foie Gras Produced by Forced Feeding Is an Adulterated Food

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

CLAIMANT IS ENTITLED TO SIMULTANEOUSLY RECEIVE AN AWARD FOR A SCHEDULE LOSS... THE COLLECTIVE BARGAINING AGREEMENT DID NOT ALLOW THE AWARD OF BACK PAY TO AN...