Decided and Entered:July 23, 2026

CV-25-0906

Calendar Date: May 29, 2026

Before: Clark, J.P., Aarons, Ceresia, Mcshan And Powers, JJ.

[*1]

Clark, J.P.

Appeal from a judgment of the Supreme Court (David Weinstein, J.), entered February 11, 2025 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to compel the Department of Corrections and Community Supervision to enroll petitioner in the shock incarceration program.

In December 2022, petitioner pleaded guilty, under two separate dockets, to criminal possession of a controlled substance in the third degree and criminal contempt in the first degree. County Court (McMahon, J.) sentenced petitioner, as a second felony offender, to a prison term of four years, to be followed by two years of postrelease supervision, on the criminal possession of a controlled substance conviction, to run concurrently with a prison term of 2 to 4 years on the criminal contempt conviction. The same sentencing judge further ordered that petitioner be enrolled in the shock incarceration program pursuant to Penal Law § 60.04 (7) in connection with his conviction for the controlled substance offense and made a nonbinding recommendation in favor of shock enrollment on the criminal contempt conviction.^FN1

After petitioner became time-eligible for enrollment in the shock incarceration program (see Correction Law § 865 [1]), the Department of Corrections and Community Supervision (hereinafter DOCCS) screened him for eligibility and found him "unsuitable" for the program based upon an April 2023 tier III disciplinary infraction. DOCCS also took the position that, while petitioner's drug possession conviction was eligible for court-ordered enrollment in shock, his criminal contempt conviction was not and, therefore, it was construing County Court's order directing shock incarceration on the drug possession conviction as a nonbinding recommendation. In response, petitioner's counsel sent a letter to DOCCS requesting that he be enrolled in the shock incarceration program, arguing that DOCCS lacked the authority to disregard a judicial order directing petitioner to be enrolled in the program in connection with an eligible conviction — i.e., criminal possession of a controlled substance in the third degree — and that his additional criminal contempt conviction did not render him ineligible.

When DOCCS persisted in its refusal to enroll petitioner in the program, petitioner commenced this CPLR article 78 proceeding seeking an order compelling DOCCS to do so. Respondent answered the petition and argued that court-ordered enrollment in the program was unavailable given petitioner's criminal contempt conviction. Thus, because petitioner did not establish a clear legal right to the relief he sought, respondent argued that a writ of mandamus to compel did not lie. Supreme Court agreed with respondent and dismissed the petition, concluding that, under "the most rational construction of" Penal Law § 60.04 (7) (a), DOCCS retains the discretion to determine eligibility for enrollment in the shock incarceration program when a person has been [*2]sentenced to concurrent terms of incarceration on both a shock eligible drug offense and an "eligible non-drug offense." Petitioner appeals.

As a threshold procedural matter, respondent has advised this Court that petitioner has been released from incarceration, rendering this appeal moot (see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]; Matter of Matzell v Annucci, 183 AD3d 1, 3 [3d Dept 2020]). However, we agree with petitioner that it is appropriate to apply the mootness exception to address the merits of the question raised on appeal — namely, whether a court order issued under Penal Law § 60.04 (7) (a) that directs an eligible defendant to be enrolled in the shock incarceration program on a conviction for a qualifying drug offense constitutes merely a nonbinding recommendation when the defendant also stands convicted of an additional non-drug offense and has been sentenced, by the same sentencing judge, to a concurrent term of incarceration on such offense (see Matter of Matzell v Annucci, 183 AD3d at 3; compare People ex rel. Williams v Lotz, 203 AD3d 1423, 1424 [3d Dept 2022]). To that end, "[i]nvocation of the mootness exception requires a three-part showing: the issue to be decided, though moot, (1) is likely to recur, either between the parties or other members of the public, (2) is substantial and novel, and (3) will typically evade review in the courts" (Matter of Hoyt v Figueroa, 246 AD3d 1172, 1174 [3d Dept 2026] [internal quotation marks and citations omitted]; see Matter of Matzell v Annucci, 183 AD3d at 3). As for the first requirement, petitioner's counsel has advised this Court that the legal services organization she works for recently commenced another CPLR article 78 proceeding on behalf of an individual "whose [s]hock order is being disregarded by DOCCS because the petitioner was convicted of both an enumerated and non-enumerated offense." In light of such representation and given that individuals are frequently convicted of both drug-related and non-drug-related felonies together, the question presented on this appeal is likely to recur.

The issue presented is also substantial and novel, for while this Court has addressed the scope of a sentencing court's authority under Penal Law § 60.04 (7) (a) to issue a binding order directing an incarcerated individual's enrollment in the shock incarceration program on a conviction for a single qualifying drug offense, as well as the corresponding limitations placed on DOCCS's otherwise discretionary authority in that circumstance, we have not addressed the scope of a sentencing court's authority to direct shock enrollment in the scenario underlying this appeal (compare People v ex rel. Williams v Lotz, 203 AD3d at 1423-1424; Matter of Matzell v Annucci, 183 AD3d at 3; People v Martin, 105 AD3d 1266, 1267 n [3d Dept 2013]; Matter of Ferreri v Fischer, 69 AD3d 1014, 1014-1015 [3d Dept 2010], lv denied 14 NY3d 707 [2010]). Moreover, as we previously noted, cases challenging [*3]DOCCS's failure to enroll an incarcerated individual into the shock incarceration program will typically evade review given the stringent statutory time frames governing enrollment eligibility and "due to the six-month time period necessary to complete the program" (Matter of Matzell v Annucci, 183 AD3d at 4; see Correction Law § 865 [2]). Since we conclude that it is appropriate to apply the mootness exception in this case, we will address the merits of petitioner's appeal.

To answer the question presented, we begin with the plain language of the statutes governing the shock incarceration program, which is the best evidence of legislative intent (see People v N.H., ___ NY3d ___, ___, 2026 NY Slip Op 02437, *4 [2026]; Matter of Matzell v Annucci, 183 AD3d at 4). The shock incarceration program provides selected eligible incarcerated individuals the opportunity to "serve a period of six months [of their sentence] in a shock incarceration facility," during which they are provided with "rigorous physical activity, intensive regimentation and discipline and rehabilitation therapy and programming" (Correction Law § 865 [2]). Incarcerated individuals who successfully complete the program and receive a certificate of earned eligibility are eligible for certain benefits depending on whether they are serving a determinate or indeterminate term of incarceration (see Correction Law § 867 [4]).^FN2

When the program was first enacted, DOCCS had the discretion in all cases to determine which incarcerated individuals were enrolled (see Correction Law former § 867; L 1987, ch 261, § 15). However, with the enactment of the 2009 Drug Law Reform Act (hereinafter DLRA; see L 2009, ch 56, part AAA), the Legislature added subdivision seven to Penal Law § 60.04, which provides, in relevant part, that when a sentencing court "imposes a sentence of imprisonment which requires a commitment to [DOCCS] upon a person who stands convicted of a controlled substance or marihuana offense, . . . the court may issue an order directing that [DOCCS] enroll [a] defendant in the shock incarceration program" provided that the defendant is an "eligible incarcerated individual, as described in [Correction Law § 865 (1)]" (Correction Law § 60.04 [7] [a]). An eligible incarcerated individual is statutorily defined, in relevant part, as "a person . . . who will become eligible for . . . release within three years, who has not reached the age of [50 years and] who has not previously been convicted of a violent felony" (Correction Law § 865 [1]). Correction Law § 865 (1) enumerates certain categories of offenses that render an incarcerated individual ineligible for the program, including convictions for certain violent felony offenses as defined in Penal Law article 70,^FN3 A-I felony offenses, homicide offenses, felony sex offenses, and escape or absconding offenses (see Correction Law § 865 [1] [a]-[e]).

At the same time the Legislature enacted Penal Law § 60.04 (7) (a), it also added a new subdivision [*4]to Correction Law § 867 limiting the scope of DOCCS's discretionary authority over "judicially sentenced shock incarceration incarcerated individual[s]" (Correction Law § 867 [2-a]). In that regard, "[w]here a court [lawfully] sentences an [incarcerated individual] to the program," DOCCS's authority is "limited to its administration of the program" and determining whether "a judicially sentenced shock incarceration [incarcerated individual] 'has a medical or mental health condition that [would] render the [incarcerated individual] unable to successfully complete the . . . program' " (Matter of Matzell v Annucci, 183 AD3d at 6, quoting Correction Law § 867 [2-a]). DOCCS has no discretion "as to the eligibility criteria" in that scenario (Matter of Matzell v Annucci, 183 AD3d at 6).

Conversely, when an individual is sentenced to a term of incarceration solely on a conviction for a non-qualifying offense, a court order purporting to direct his or her enrollment in the shock incarceration program under Penal Law § 60.04 (7) "constitute[s] a nonbinding recommendation" (People v Martin, 105 AD3d at 1266 n). Here, it is undisputed that petitioner was convicted of a qualifying drug offense, was sentenced to a term of incarceration in connection therewith and was an eligible incarcerated individual under the criteria set forth in Correction Law § 865 (1). Accordingly, County Court was plainly authorized under Penal Law § 60.04 (7) (a) to direct shock incarceration on petitioner's criminal possession of a controlled substance conviction, and he became eligible for enrollment in the program when he was within three years of his conditional release date (see Penal Law § 60.04 [7] [a]).

Contrary to respondent's contention, the statutory scheme does not support finding that a court order directing an eligible incarcerated individual's enrollment in the program under Penal Law § 60.04 (7) (a) constitutes a nonbinding recommendation under the circumstances presented here — i.e., when the same sentencing judge sentences an eligible defendant to concurrent terms of incarceration on convictions for both an enumerated drug offense and another, non-enumerated, offense that is not expressly disqualifying under Correction Law § 865 (1). Under accepted canons of statutory interpretation, "the literal language of a statute controls unless the plain intent and purpose of the statute would otherwise be defeated" (Matter of Central Hudson Gas & Elec. Corp. v State of N.Y. Pub. Serv. Commn., 242 AD3d 33, 37 [3d Dept 2025] [internal quotation marks and citations omitted]; see Matter of Markey v Tietz, 244 AD3d 78, 83-84 [3d Dept 2025]). Furthermore, "a court cannot amend a statute by inserting words that are not there, and an inference must be drawn that what is omitted or not included was intended to be omitted and excluded" (Matter of Matzell v Annucci, 183 AD3d at 5 [internal quotation marks and citations omitted]). We also note that Penal Law § 60.04 (7) (a) was enacted [*5]in 2009 as part of the DLRA, which is remedial legislation aimed at "afford[ing] relief to low-level, non-violent drug offenders originally sentenced under a scheme that often mandated inordinately harsh punishment" (People v Sosa, 18 NY3d 436, 438 [2012] [internal quotation marks and citations omitted]) and should be "interpreted broadly to accomplish" such goals (People v Brown, 25 NY3d 247, 251 [2015]).

Applying such principles, we note that Penal Law § 60.04 (7) (a) uses permissive language authorizing a sentencing court to order shock enrollment when an eligible incarcerated individual has been convicted of "a controlled substance or marihuana offense," without any corresponding restrictive language prohibiting a court from doing so in circumstances where such individual has been sentenced to a concurrent term of incarceration on an additional, non-drug-related offense that is not expressly disqualifying under Correction Law § 865 (1). The failure to include such limiting language is notable, for when the Legislature has intended to limit eligibility for alternative sentencing dispositions to convictions for specified offenses and no others, it has expressly said so in other contexts (see e.g. CPL 410.91 [2] ["(a) defendant is an 'eligible defendant' for purposes of a sentence of parole supervision when such defendant is a felony offender convicted of a specified offense or offenses as defined in subdivision five of this section, who stands convicted of no other felony offense" (emphasis added)]). In addition, by expressly enumerating certain categories of offenses that exempt a person from eligibility for shock incarceration (see e.g. Correction Law § 865 [1] [a]-[e]), the Legislature has evinced an intent to limit the class of disqualifying offenses only to those that are expressly listed (see Morales v County of Nassau, 94 NY2d 218, 224 [1999]). Petitioner's additional criminal contempt conviction is not one of the disqualifying offenses enumerated in Correction Law § 865 (1) (a)-(e).

Stated succinctly, when applying the literal language of Penal Law § 60.04 (7) (a) and Correction Law § 865 (1), the most rational interpretation of the statutes is that, when the same sentencing judge imposes concurrent sentences on convictions for an eligible drug offense and another non-enumerated offense, the sentencing judge's directive to enroll an eligible incarcerated individual into the shock incarceration program upon the conviction for the qualifying drug offense is binding on DOCCS, so long as the conviction on the additional non-drug offense is not one of the disqualifying offenses listed in Correction Law § 865 (1). Contrary to respondent's contention, such interpretation is in accord with the remedial purpose of the DLRA. Moreover, as we emphasized in Matter of Matzell v Annucci, CPL 430.10 provides that "once a 'court has imposed a sentence of imprisonment and such sentence is in accordance with law, such sentence may not be changed . . . once [*6]the term or period of the sentence has commenced' " (Matter of Matzell v Annucci, 183 AD3d at 6, quoting CPL 430.10). Thus, as we concluded in Matter of Matzell v Annucci, accepting DOCCS's position in this case would permit it "to administratively modify a criminal sentence, rendering the Legislature's grant of judicial authority under [Penal Law § 60.04 (7) (a)] meaningless and hamper[ing] the purpose of the statute under the DLRA" (Matter of Matzell v Annucci, 183 AD3d at 6).^FN4 For all the foregoing reasons, Supreme Court erred in concluding that DOCCS retained the discretionary authority to enroll petitioner in the shock incarceration program.

Aarons, Ceresia, McShan and Powers, JJ., concur.

ORDERED that the judgment is reversed, on the law, with costs, and determination annulled.