IN RE: Diana Oliver

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Supreme Court, Appellate Division, Second Department, New York.

IN RE: Diana Oliver, appellant, v. Mark A. Gross, etc., et al., respondents.

2013–00660 (Index No. 3960/12)

Decided: October 29, 2014

REINALDO E. RIVERA, J.P. L. PRISCILLA HALL LEONARD B. AUSTIN JEFFREY A. COHEN, JJ. Barry Jay Skwiersky, Mount Vernon, N.Y., for appellant. Eric T. Schneiderman, Attorney General, New York, N.Y. (Steven C. Wu and Mark H. Shawhan of counsel), for respondents Mark A. Gross, Judge of the Mount Vernon City Court, and the Several Judges of the Mount Vernon City Court. Janet DiFiore, District Attorney, White Plains, N.Y. (John Carmody, Steven A. Bender, and Richard Longworth Hecht of counsel), respondent pro se.

Argued—October 2, 2014


In a proceeding pursuant to CPLR article 78 in the nature of prohibition, inter alia, to prohibit the respondents from requiring the petitioner, as a condition of her release in a pending criminal prosecution, to cooperate with the treatment recommendations of the agency known as Treatment Alternatives for Safer Communities, the petitioner appeals from a judgment of the Supreme Court, Westchester County (Cacace, J.), entered November 27, 2012, which denied the petition and dismissed the proceeding.

ORDERED that the appeal is dismissed as academic, without costs or disbursements.

In May 2012, the petitioner was charged with, among other things, assault in the third degree after allegedly assaulting another woman and her children at a train station in Mount Vernon.   The petitioner appeared for arraignment and was released on her own recognizance by the respondent Mark A. Gross, a Judge of the Mount Vernon City Court (hereinafter the respondent Judge), on the condition that she cooperate with an agency known as Treatment Alternatives for Safer Communities (hereinafter TASC) of the Westchester County Department of Community Mental Health, and that she follow the treatment recommendations made by that agency.   The petitioner then commenced this CPLR article 78 proceeding in the nature of prohibition, arguing, inter alia, that the respondent Judge exceeded his authority when he conditioned her release upon cooperation with TASC. The Supreme Court denied the petition and dismissed the proceeding.

While perfecting this appeal, the petitioner completed a counseling program recommended by TASC and was relieved, by the Mount Vernon City Court, of her obligations to TASC. Moreover, the Mount Vernon City Court dismissed the underlying criminal prosecution.   Under these circumstances, the issue presented has been rendered academic and the appeal must be dismissed (see Matter of Valera v. Stein, 37 AD3d 1001, 1002;  Matter of Kassenbaum v. Al–Rahman, 212 A.D.2d 482;  People ex rel. Ferguson v. Campbell, 186 A.D.2d 319).   Contrary to the petitioner's contention, this matter does not warrant the invocation of the exception to the mootness doctrine (see Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714–715;  Matter of Field v. Stamile, 85 AD3d 1164, 1165;  cf.  People ex rel. McManus v. Horn, 18 NY3d 660, 664;  see generally Matter of Vlepakis v Dillon, 246 A.D.2d 549, 550;  People ex rel. Bryce v. Infante, 144 A.D.2d 898, 899;  People ex rel. Moquin v. Infante, 134 A.D.2d 764, 765).

RIVERA, J.P., HALL, AUSTIN and COHEN, JJ., concur.


Aprilanne Agostino

Clerk of the Court

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