Richard S. v. Nowicki

180 A.D.3d 1368

118 N.Y.S.3d 349

In the Matter of RICHARD S., a Resident at Central New York Psychiatric Center, Petitioner–Respondent,

v.Jeffrey NOWICKI, Chief of Mental Health Services, Central New York Psychiatric Center, Danielle Dill, Psy.D., Deputy Director, Sex Offender Treatment Program, Central New York Psychiatric Center, Deborah McCulloch, Executive Director, Central New York Psychiatric Center, and Ann Marie T. Sullivan, M.D., Commissioner, New York State Office of Mental Health, Respondents-Appellants.

1209

CA 19–00494

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

Entered: February 7, 2020

LETITIA JAMES, ATTORNEY GENERAL, ALBANY (JONATHAN D. HITSOUS OF COUNSEL), FOR RESPONDENTS–APPELLANTS.

SARAH M. FALLON, DIRECTOR, MENTAL HYGIENE LEGAL SERVICE, UTICA (BENJAMIN D. AGATA OF COUNSEL), FOR PETITIONER–RESPONDENT.

PRESENT: CENTRA, J.P., CARNI, LINDLEY, CURRAN, AND TROUTMAN, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that said appeal from the judgment insofar as it granted the petition and annulled the determination is dismissed, and the judgment is unanimously modified on the law by vacating the second and third decretal paragraphs, and as modified the judgment is affirmed without costs.

Memorandum: Petitioner, who is currently confined at the Central New York Psychiatric Center (CNYPC), commenced this CPLR article 78 proceeding seeking to annul a determination prohibiting him from possessing or using a miswak, which is a root traditionally used by practicing Muslims for oral hygiene. Respondents now appeal from a judgment that, inter alia, granted the petition and annulled the determination.

Initially, petitioner contends that this appeal has been rendered moot because, under a new policy adopted by CNYPC subsequent to the entry of the judgment on appeal, he is permitted to possess and use a miswak. Insofar as the appeal concerns the first decretal paragraph of the judgment, in which Supreme Court granted the petition and annulled the determination, we agree, and we therefore dismiss the appeal to that extent. In light of CNYPC's new policy regarding miswak sticks, "enduring consequences" no longer flow from that decretal paragraph ( Matter of New York State Commn. on Jud. Conduct v. Rubenstein, 23 N.Y.3d 570, 576, 992 N.Y.S.2d 678, 16 N.E.3d 1156 [2014] ; cf. Frederick v. New York State Thruway Auth., 143 A.D.3d 1267, 1268, 39 N.Y.S.3d 344 [4th Dept. 2016] ).

However, the appeal is not moot insofar as it concerns the second and third decretal paragraphs of the judgment, in which the court stated that petitioner is entitled to order, possess, and use "licorice chew sticks," and in which the court directed that any chew sticks confiscated from petitioner be returned to him (see generally Frederick, 143 A.D.3d at 1268, 39 N.Y.S.3d 344 ). Although the court in the second decretal paragraph equated licorice chew sticks with miswak sticks,...