State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: March 26, 2015 518768 

________________________________

In the Matter of JOHN D. 

JUSTICE,

Appellant,

v MEMORANDUM AND ORDER

BRIAN FISCHER, as Commissioner

of Corrections and Community

Supervision,

Respondent.

________________________________

Calendar Date: February 10, 2015

Before: Lahtinen, J.P., Garry, Lynch and Devine, JJ.

__________

John D. Justice, Comstock, appellant pro se.

Eric T. Schneiderman, Attorney General, Albany (Kathleen M.

Treasure of counsel), for respondent.

__________

Garry, J.

Appeal from a judgment of the Supreme Court (Melkonian,

J.), entered April 4, 2014 in Albany County, which, in a

proceeding pursuant to CPLR article 78, denied petitioner's

motion to hold respondent in civil contempt.

Petitioner, who is currently incarcerated, applied for

conditional release and, when he did not receive a response, he

commenced a CPLR article 78 proceeding seeking to compel

respondent to rule upon his application. Supreme Court granted

the petition and issued an order that, among other things,

directed respondent to decide petitioner's application. In

connection therewith, the Department of Corrections and Community
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Supervision (hereinafter DOCCS) informed petitioner that one of

the conditions of his release was that he reside in an approved

residence. Petitioner provided DOCCS with three residential

options. None of these were found acceptable, and DOCCS thus

requested that petitioner provide further residential options. 

Petitioner declined to do so and, instead, brought the instant

motion for an order seeking to hold respondent in civil contempt

for failure to comply with the court's prior order. Respondent

did not file a response. Supreme Court found that respondent had

complied with the prior order and denied petitioner's

application. Petitioner appeals.

We affirm. In order "[t]o establish civil contempt, [the]

petitioner must demonstrate by clear and convincing evidence that

the [respondent] knowingly violated a clear and unequivocal court

order and that such conduct prejudiced his [or her] rights"

(Matter of Platten v New York State Div. of Parole, 85 AD3d 1281,

1281-1282 [2011]; see Matter of DeMeo v City of Albany, 73 AD3d

1316, 1317 [2010], lv denied 15 NY3d 819 [2010]). Petitioner has

not made that showing here. The record discloses that DOCCS

complied with the prior order by seeking to collect the

information needed from petitioner to process his application. 

Petitioner did not cooperate with DOCCS by providing it with

information regarding additional residential options after the

first three were found unacceptable and, thus, he may not claim

that DOCCS failed to process his application. Accordingly,

Supreme Court properly concluded that its prior order was not

violated and denied petitioner's motion to hold respondent in

civil contempt. We have considered petitioner's remaining

contentions and find them unavailing.

Lahtinen, J.P., Lynch and Devine, JJ., concur.
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ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court