State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: January 28, 2016 521382 

________________________________

In the Matter of JOHN D.

JUSTICE,

Appellant,

v MEMORANDUM AND ORDER

ANDREA EVANS, as Chair of the

New York State Board of

Parole, et al.,

Respondents.

________________________________

Calendar Date: December 8, 2015

Before: McCarthy, J.P., Egan Jr., Devine and Clark, JJ.

__________

John D. Justice, Rochester, appellant pro se.

Eric T. Schneiderman, Attorney General, Albany (Laura

Etlinger of counsel), for respondents.

__________

Appeal from a judgment of the Supreme Court (O'Connor, J.),

entered June 22, 2015 in Albany County, which, among other

things, partially granted petitioner's application, in a

proceeding pursuant to CPLR article 78, to annul a determination

of the Board of Parole denying his request for a parole

revocation rehearing.

Petitioner was found not responsible by reason of mental

disease or defect in the killing of two individuals and was

sentenced to serve 13a to 40 years in prison due to his

conviction on charges related to the killing of two others

(People v Justice, 202 AD2d 981 [1994], lv denied 83 NY2d 968

[1994]; People v Justice, 173 AD2d 144, 146 [1991]). He was

released to parole supervision in 2005 and was additionally
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subject to an order of conditions imposed pursuant to CPL 330.20. 

His parole was revoked in 2007 (People ex rel. Justice v Racette,

111 AD3d 1041 [2013], lv denied 22 NY3d 861 [2014]). In 2012, he

applied to the Board of Parole for a rehearing of its 2007 parole

revocation determination based upon newly discovered evidence. 

The Board denied his application, and petitioner commenced this

CPLR article 78 proceeding seeking, among other things, review of

the Board's determination. Supreme Court (Lynch, J.) granted a

pre-answer motion to dismiss the petition, but this Court

remitted the matter so that issue could be joined and the

challenge to the denial of his request addressed on the merits

(121 AD3d 1260 [2014]). Upon remittal, Supreme Court (O'Connor,

J.) partially granted the petition to the extent of annulling the

denial of petitioner's application for a parole revocation

rehearing and directing the Board to conduct a de novo review of

that application. Petitioner now appeals.

Respondents advise us that petitioner was set to reach the

maximum expiration date of his sentence in September 2015, but

that he remains confined under the terms of a recommitment order

issued pursuant to CPL 330.20. A recommitment order will not be

issued absent proof that petitioner "currently constitutes a

physical danger to himself or others" (CPL 330.20 [1] [c] [ii];

see CPL 330.20 [14]), proof that may include "a history of prior

relapses into violent behavior, [or] substance abuse or dangerous

activities upon release or termination of psychiatric treatment"

(Matter of George L., 85 NY2d 295, 308 [1995]). Inasmuch as the

Board's refusal to revisit its "finding that petitioner is a

parole violator may have lasting consequences" under these

circumstances, the appeal has not been rendered moot even if

petitioner has reached the maximum expiration date of his

sentence (Matter of Peck v Evans, 118 AD3d 1086, 1087 n [2014];

see Matter of Biondo v New York State Bd. of Parole, 60 NY2d 832,

834 [1983]).

Turning to the merits, Supreme Court annulled the

determination at issue and directed that the Board conduct a de

novo review of petitioner's application for a parole revocation
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rehearing.1 Despite petitioner's protestations to the contrary,

the foregoing constituted "all of the relief to which he is

entitled" (Matter of Evans v Dennison, 58 AD3d 998, 999 [2009];

see e.g. Matter of 985 Amsterdam Ave. Hous. Dev. Fund Corp. v

Beddoe, 126 AD3d 562, 563 [2015]). Thus, we affirm.

McCarthy, J.P., Egan Jr., Devine and Clark, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court

1 The Board has complied with the judgment on appeal and,

in August 2015, issued a determination that again denied

petitioner's application.