OPINION OF THE COURT
Chief Judge DiFIORE.
The primary issue presented on appeal is whether the Appellate Division erred in holding that the Department of Corrections and Community Supervision (DOCCS), which must "assist"
Petitioner was convicted, upon his guilty plea, of rape in the second degree under Penal Law § 130.30 (1). He was sentenced to a determinate sentence consisting of 2½ years' imprisonment followed by 3 years' postrelease supervision (PRS). The maximum expiration date of his prison sentence was September 30, 2014. In early May 2014, petitioner was advised by the Time Allowance Committee at Franklin Correctional Facility that his accumulated good time credit amounted to four months and 10 days and that he was eligible for conditional release to PRS on May 20, 2014. Had petitioner been released on his conditional release date, the maximum expiration date of his PRS would have been three years from that date, or May 20, 2017.
Based on the sex offense for which petitioner was convicted and the fact that the victim of the offense was 14 years old at the time of the offense, petitioner's supervisory release was subject to the mandatory condition set forth in the Sexual Assault Reform Act (SARA) prohibiting him from residing within 1,000 feet of school grounds (see Executive Law § 259-c ; Penal Law §§ 220.00 ; 65.10 [4-a] [a]). In accordance with this statutory requirement, one month prior to petitioner's conditional release date, the Board of Parole imposed a special condition on his release. That condition required petitioner to propose an appropriate SARA-compliant residence to be investigated and approved by DOCCS. Petitioner identified one potential residence prior to his May 2014 conditional release date but that residence did not qualify as SARA-compliant housing. Since he was unable to satisfy the mandatory condition of his supervisory release, DOCCS held him in custody beyond his May 20, 2014 conditional release date. Petitioner continued to identify potential residences and discuss them with his parole officer, but none of the proposed residences he identified satisfied the mandatory special condition. As a result,
Because petitioner was unable to identify a suitable residence by his maximum expiration date, the Board of Parole imposed, as a condition of his PRS, that petitioner be transferred to Woodbourne Correctional Facility—a residential treatment facility (see Penal Law § 70.45 ; Correction Law § 2 ). Specifically, under Penal Law § 70.45 (3), the Board of Parole is authorized to require, as a condition of PRS, that an inmate be transferred to and participate in the programs of an RTF for a period of no more than six months upon his or her release from the underlying term of imprisonment. Woodbourne is a medium security correctional facility that DOCCS has designated for use as an RTF (see 7 NYCRR 100.50 [c] ). Petitioner remained at Woodbourne until February 4, 2015, when he was released on supervision to a SARA-compliant shelter in Manhattan.
In December 2014, petitioner commenced this CPLR article 78 proceeding asserting that DOCCS failed to provide him with assistance in locating housing. He also challenged the agency's determination to designate Woodbourne as an RTF, asserting, among other things, that the facility did not comply with the statutory requirements of an RTF under Correction Law §§ 2 and 73 and that he was therefore being held in an illegal RTF.
In disputing that Woodbourne was a legal RTF, petitioner argued that he was effectively being incarcerated in a facility
In support of his claim that DOCCS did not provide him with assistance in locating SARA-compliant housing, petitioner alleged that he was assigned to a Poughkeepsie-area parole officer and not one from New York City. Petitioner was permitted to leave the Woodbourne facility to make weekly visits to the parole officer but objected to the fact that he was under the supervision of correction officers at all times. He asserted that, at those visits, the parole officer would merely ask him whether he had located any suitable housing. Petitioner acknowledged that the parole officer affirmatively proposed a single housing option for him—a therapeutic community in Staten Island at a monthly cost of $620, which petitioner rejected as he could not afford it. He essentially contended that DOCCS' assistance was insufficient in light of the circumstances of his continued incarceration at the RTF, including his limited access to the telephone and lack of access to the internet.
In opposition, DOCCS maintained that petitioner was retained beyond his conditional release date because he was unable to satisfy the special condition imposed by the Board of Parole—the SARA residency requirement—and, based on his continued inability to find a suitable residence, he was properly transferred to Woodbourne as a condition of his PRS on his maximum expiration date. DOCCS provided an affidavit from a supervising offender rehabilitation coordinator (SORC) who averred that, in general, RTF inmates "meet and collaborate with DOCCS staff with greater frequency than non-sex-offender inmates, with an emphasis on identifying lawful and
As to rendering assistance to petitioner, DOCCS also submitted entries from its case management system (CMS) detailing many of the proposed residences identified by petitioner for investigation by DOCCS and why these residences were rejected for lack of SARA compliance. Notably, an entry dated November 28, 2014, states that petitioner had proposed 58 potential residences since March 2014. DOCCS identified nine dates on which petitioner had met with SORCs regarding SARA-compliant housing and 14 dates on which its personnel had recorded efforts to investigate residences for SARA compliance on petitioner's behalf. The CMS entries also indicate that petitioner was referred to parole reentry services.
Significantly, DOCCS also provided an affidavit from counsel to the Board of Parole, who affirmed that, in addition to investigating the residences proposed by petitioner for SARA-compliance, DOCCS' staff reached out to other agencies, including the local Department of Social Services, to ascertain whether they could provide housing for petitioner. An assistant commissioner for population management at DOCCS provided the reasons for petitioner's placement at Woodbourne explaining in her affidavit that, although there were RTFs that were closer to Manhattan, Woodbourne was the closest appropriate option for petitioner based on the programming that was available as well as staffing considerations. The affidavit also explained that DOCCS partners with the Department of Homeless Services (DHS) in New York City to obtain suitable housing for indigent sex offenders who are returning to the city upon release. According to the affidavit, there are only four SARA-compliant DHS locations in New York City that accept parolees and individuals are accepted as space becomes available, with individuals who have been held the longest in RTFs being placed first.
Supreme Court denied the petition (56 Misc.3d 1203[A], 2015 NY Slip Op 52034[U] [Sup Ct, Albany County 2015]). Notwithstanding
The Appellate Division agreed that the majority of the issues (except for petitioner's challenge to the loss of his good time credit, as the PRS term was still ongoing when the Court issued its decision) were moot, but held that the exception to mootness applied and reached the merits. The Court modified, on the law, by partially converting the matter to a declaratory judgment action and declaring that DOCCS has an affirmative statutory obligation to provide "substantial assistance" to inmates who have been placed in an RTF and who are subject to the mandatory residency restrictions in SARA in locating appropriate housing, and that DOCCS failed to satisfy its statutory duty to petitioner in this case (149 A.D.3d 256, 264 [3d Dept 2017]). As to petitioner's remaining arguments, the Court held that it was not irrational for DOCCS to withhold petitioner's good time credit while he was unable to locate SARA-compliant housing prior to the expiration of his prison sentence and that DOCCS' decision to transfer petitioner to Woodbourne upon completion of the prison sentence was not irrational or in violation of the agency's statutory and regulatory obligations.
Two Justices dissented in part and would have held that petitioner received adequate assistance in finding SARA-compliant housing. DOCCS appealed to this Court as of right (CPLR 5601 [a]) and we granted petitioner's motion for leave to cross-appeal.
We reject DOCCS' assertion that the Appellate Division erred in invoking the exception to mootness to reach the issues raised on appeal. "In general an appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment" (Matter of Hearst Corp. v Clyne, 50 N.Y.2d 707, 714 ). We have, however, invoked the exception to mootness to consider substantial and novel issues that are likely to be repeated and will typically evade review (see Hearst Corp., 50 NY2d at 714-715). Based on the dearth of SARA-compliant housing in New York City, and the resulting need for placement of sex offenders in RTFs for a
As noted above, the primary issue presented is the extent of DOCCS' obligation to assist inmates in obtaining housing under Correction Law § 201 (5). "Where the interpretation of a statute or its application involves knowledge and understanding of underlying operational practices or entails an evaluation of factual data and inferences to be drawn therefrom, the courts regularly defer to the governmental agency charged with the responsibility for administration of the statute" (Kurcsics v Merchants Mut. Ins. Co., 49 N.Y.2d 451, 459 ). However, "[w]here the question is one of pure legal interpretation of statutory terms, deference to the [agency] is not required" (Matter of Raritan Dev. Corp. v Silva, 91 N.Y.2d 98, 102  [internal quotation marks and citation omitted]). Here, the statutory language is clear and no deference is required.
Under Correction Law § 201 (5), DOCCS "shall assist inmates eligible for community supervision and inmates who are on community supervision to secure employment, educational or vocational training, and housing." There is nothing set forth in the statutory language of section 201 (5) that imposes a heightened duty upon DOCCS to provide substantial assistance to an inmate seeking housing (cf. Correction Law § 73  [DOCCS "shall be responsible for securing appropriate
We disagree with the Appellate Division majority's reasoning that DOCCS has an obligation to provide substantial assistance to inmates in petitioner's situation, in part, because of DOCCS' separate obligation to "investigat[e] and approv[e] the residence" of level two and three sex offenders (Correction Law § 203 ; Executive Law § 243 ), and that, in light of this existing obligation, the "additional affirmative statutory obligation" to provide assistance under Correction Law § 201 (5) would be rendered meaningless if satisfied by the investigation and approval of residences proposed by the inmate (149 AD3d at 263). First, we note that petitioner is a level one sex offender and, therefore, Correction Law § 203 (1) and Executive Law § 243 (4) do not apply to him. Those statutes cannot render section 201 (5) meaningless with respect to petitioner. In any event, Correction Law § 203 (1) and Executive Law § 243 (4) cannot be read to support the heightened burden on DOCCS that the Appellate Division would impose.
In People v Diack, we recognized that the State, in an effort to preempt rules imposed by individual localities to curtail the housing of sex offenders in their jurisdictions, assumed the responsibility for "maint[aining] and locat[ing]" acceptable housing for sex offenders and that regulations were promulgated
In contrast, under the plain language of section 201, DOCCS' obligation with respect to all inmates on or eligible for community supervision is to provide assistance in a general manner and certainly does not alleviate the ultimate obligation on the inmate to locate housing.
In sum, Correction Law § 201 (5) requires DOCCS to assist inmates prior to release and under supervision to secure housing. DOCCS has interpreted its obligation under the statute as satisfied when it actively investigates and approves residences that have been identified by inmates and when it provides the inmates with adequate resources to allow them to propose residences for investigation and approval. This interpretation is consistent with the plain language of the statute as well as the larger statutory framework. While the agency is free, in its discretion, to provide additional assistance to inmates in locating SARA-compliant housing—particularly where an inmate is nearing the maximum expiration date or is residing in an RTF with the associated restrictions on the ability to conduct a comprehensive search—there is no statutory basis in Correction Law § 201 (5) for imposing such an obligation.
As to whether DOCCS met its obligation in this particular case, the record demonstrates that petitioner met biweekly with an ORC regarding SARA-compliant housing and also met several times with his parole officer. Petitioner was able to propose 58 residences which DOCCS investigated for SARA-compliance. The agency also affirmatively identified at least two housing options for petitioner in New York City—one was rejected by petitioner on the basis that he could not afford it and the other was the shelter in Manhattan where he was ultimately housed. Certainly, the record reflects that DOCCS
Finally, we agree with the Appellate Division that there was insufficient record evidence to establish that DOCCS' determination to place petitioner at the Woodbourne RTF was irrational or that the conditions of his placement at that facility were in violation of the agency's statutory or regulatory obligations.
The parties' remaining contentions are without merit.
Accordingly, the order of the Appellate Division should be modified, without costs, in accordance with this opinion and, as so modified, affirmed.
RIVERA, J. (concurring in part and dissenting in part).
I join sections I through III of the dissent, and agree fully with Judge Wilson's analysis and discussion of the proper interpretation of the Department of Corrections and Community Supervision's duty to assist petitioner Miguel Gonzalez pursuant to Correction Law § 201 (5), and the need for a hearing on petitioner's challenge to his placement at the Woodbourne Correctional Facility based on his claim that it failed to meet the requirements of a residential treatment facility. However, I agree with the majority (majority op at 471 n 3) that the exception to the mootness doctrine does not apply to petitioner's good time credit claim. That issue remains open.
WILSON, J. (dissenting).
Suppose you were moving to New York City and were looking for a place to live. As tens of thousands do each year, you turn to a real estate agent for assistance. You tell your agent the maximum rent you can afford and that you need an apartment within a certain proximity of a school, the subway and a park. The agent, however, does not
According to the majority, this Kafkaesque
Mr. Gonzalez was employed as a guard at a middle school. After he left that employment, he had a sexual relationship with an underage former student of that school. He pleaded guilty to second-degree statutory rape on January 5, 2012. On April 3, 2012, he was sentenced to a determinate 2½ years in prison followed by three years' postrelease supervision (PRS). His maximum term of imprisonment was set at September 30, 2014. While in prison, he acquired "good-time credit" (see Correction Law § 803  [a]) that advanced his release date to May 20, 2014.
Mr. Gonzalez committed a serious crime and received a sentence deemed appropriate by the court, the People and Mr. Gonzalez. He then did what our corrections system aspires: he made an earnest effort to reform himself. He was a model inmate, fulfilling every rehabilitation program recommended to him, committing no disciplinary infractions, and accruing the
As a level one sex offender, Mr. Gonzalez was subject to the Sexual Assault Reform Act (SARA) for the duration of his post-release supervision period. SARA provides, in relevant part, that the parole "board shall require, as a mandatory condition of [postrelease supervision], that such sentenced offender shall refrain from knowingly entering into or upon any school grounds . . . or any other facility or institution primarily used for the care or treatment of persons under the age of eighteen" (Executive Law § 259-c ). "School grounds" here means "any area accessible to the public located within one thousand feet of the real property boundary line" of any school (Penal Law § 220.00 ). DOCCS interprets SARA to permit it to detain all sex offender inmates (including level one offenders) until one of two events occurs: (a) the inmate secures housing that is at least 1,000 feet from any school and meets other DOCCS criteria; or (b) the inmate's postrelease supervision period terminates.
As Mr. Gonzalez's release date neared, DOCCS—fully aware of the restrictions placed on Mr. Gonzalez by its interpretation of SARA—did nothing to identify suitable housing for him. Instead, when his May 20, 2014 release date arrived, DOCCS
Indeed, that DOCCS entertained Mr. Gonzalez's proposal to live in New York City in the first place (despite it being, as the majority explains, "a very limited market [for those] without financial resources" [majority op at 472]) likely stemmed from a rehabilitative motive that is, as I explain below, central to the legislature's directive under Correction Law § 201. As is true for more dangerous sex offenders (see Correction Law § 203  [d]), exiling Mr. Gonzalez to some other part of the state—far away from the "supportive family and friends" the SORA court emphasized—would increase the risk that he might reoffend and disrupt his journey towards total social reintegration. Yet despite the importance of those networks, DOCCS swiftly denied Mr. Gonzalez's proposal to live with his parents.
The majority concludes that the above conduct satisfied DOCCS's duty under Correction Law § 201 (5) to "assist" Mr. Gonzalez to "secure . . . housing." In so concluding, the majority takes issue with the Appellate Division's articulation of DOCCS's duty: namely, that DOCCS must render "substantial" assistance, which the majority interprets (wrongly) as a "heightened" duty (majority op at 466) on DOCCS, above and beyond that imposed by the statute.
Insofar as the majority thinks that the Appellate Division erred in applying the word "substantial" to describe DOCCS's duty to assist Mr. Gonzalez (majority op at 472),
Although the majority rejects the Appellate Division's understanding of the word "assist,"
Instead, to understand "assist," I would look to the legislature's "express purpose" for Correction Law § 201: "promot[ing]
The statutory scheme of the Penal Law and Correction Law as a whole should also inform our construction of the word "assist" (see Matter of M.B., 6 N.Y.3d 437, 447 ; People v Mobil Oil Corp., 48 N.Y.2d 192, 199 ). That scheme evinces a consistent effort to provide incentives for rehabilitation ("correction," if you will) and full integration into society, which also illuminates the way in which the legislature understood the word "assist."
Thus, incarcerated persons will earn time credit for "good behavior and efficient and willing performance of duties assigned or progress and achievement in an assigned treatment program" (Correction Law § 803  [a]), transitioning into a "residential treatment facility" that is a "community based residence. . . where employment, educational and training opportunities are readily available for persons who are on parole [or postrelease supervision]" (Correction Law § 2 ). DOCCS must "encourage apprenticeship training" (Correction Law § 201 ) of inmates who might benefit from it. Once released, inmates have a statutory protection from discrimination by employers and others on the basis of their criminal records (see e.g. Correction Law § 752; Executive Law § 296 -). In all respects, the statutory scheme is one that seeks systematically to remove from the willing inmate the disabilities of past crimes and imprisonment, but recognizes DOCCS's assistance is vital to enhancing the prospects for rehabilitation and reintegration.
As the majority acknowledges when it describes DOCCS's duty in terms of "adequate resources" (majority op at 474), for "assistance" to be "assistance" it must be at least "adequate." Adequate assistance, or "adequate resources," will differ depending on the needs of each individual. Surely DOCCS need not provide resources regarding SARA-compliant housing for parolees not subject to SARA at all. Likewise, I hope the majority would agree that DOCCS would fail to "assist" a paraplegic inmate if DOCCS gave the inmate a list of potential residences consisting exclusively of fourth-floor walk-ups. DOCCS appears to agree: in its reply to the amicus brief of the Legal Aid Society, DOCCS explains that its assistance to each inmate "depends on dynamic and individualized variables" that, presumably, yield different levels of "assistance" for each inmate depending on inmate needs.
The majority fears that the Appellate Division's "substantial assistance" phrasing (which, to me, simply means "adequate assistance") would impose an "unreasonable and impracticable" requirement on DOCCS to "secure each inmate [eligible for community supervision] housing, educational or vocational
It is neither "unreasonable" nor "impracticable" to conclude that DOCCS must make an individualized determination as to whether an inmate nearing release needs certain types of assistance to be able to "secure . . . housing," and then to take adequate steps to provide that assistance. Although the majority complains that anything other than "assistance in a general manner" to "all inmates" would "alleviate the ultimate obligation on the inmate to locate housing" (majority op at 473), that is precisely what "assistance" is supposed to do: alleviate ("to make [something, such as suffering] more bearable")
However, as the Appellate Division found, DOCCS failed to "assist" Mr. Gonzalez even in the narrowest sense of the term.
As the record in this case vividly demonstrates, the principal assistance DOCCS provided to Mr. Gonzalez was allowing him periodically to submit a list of guesses to a parole officer whose function was to enter those guesses into a computer and report
Far from providing "adequate resources," the majority's own standard for assistance (majority op at 474), DOCCS provided Gonzalez with nothing. DOCCS itself admits it did nothing whatsoever to assist Mr. Gonzalez to secure housing while Mr. Gonzalez was serving his determinate sentence, even though the duty to "assist" is imposed on DOCCS by statute on the first day of Mr. Gonzalez's sentence.
It is irrelevant that, in a different statutory scheme (Correction Law § 203 and its cousins) the majority and I agree is not applicable to level one offenders like Mr. Gonzalez, "DOCCS is given a law enforcement task of investigation" and does not "place[ ] a sex offender in any housing" (majority op at 473-474). As its own name indicates, the Department of Corrections and Community Supervision was expressly created by the legislature to do multiple things—imprison and rehabilitate, restrict inmates' freedom and prepare them to exercise it again, and provide "a seamless network for the care, custody, treatment and supervision of a person" (L 2011, ch 62, § 1, part C, § 1, subpart A, § 1). The majority's relegation of DOCCS to "law enforcement" buries DOCCS's rehabilitative mission—to help inmates to find the essential attributes of a socially beneficial life (a job, a home, and education).
The picture that emerges in this case, even from the majority's sketching, is one in which DOCCS is mired in some complex interagency and interjurisdictional politics over sex-offender housing. That might be a satisfactory answer to DOCCS and the various jurisdictions and agencies with which it interacts but is of no consequence to the legislature's command that DOCCS assist Mr. Gonzalez and is not even cold comfort for Mr. Gonzalez. The legislature emphasized the rehabilitative purpose of Correction Law § 201; we should not now deny it.
Although I agree with the Appellate Division's holding as to DOCCS's failure to provide adequate housing assistance to Mr. Gonzalez, I believe it, and the trial court, erred in not permitting discovery and proper fact-finding to determine whether
Whether Mr. Gonzalez's placement in the Woodbourne RTF pursuant to Penal Law § 70.45 (3) was lawful depends, in part, on whether the Woodbourne RTF complied with the requirements of RTFs when Mr. Gonzalez was there. The RTF to which DOCCS assigns a prisoner must be "a community based residence in or near a community where employment, educational and training opportunities are readily available for persons who are on parole or conditional release and for persons who are or who will soon be eligible for release on parole who intend to reside in or near that community when released" (Correction Law § 2 ), and must provide "appropriate education, on-the-job training and employment" as well as "[p]rograms directed toward the rehabilitation and total reintegration into the community" for inmates transferred there (Correction Law § 73 , ) and permit residents "to go outside the facility during reasonable and necessary hours to engage in any activity reasonably related to his or her rehabilitation and in accordance with the program established for him or her" (id. § 73 ).
The parties dispute whether Woodbourne RTF did, in fact, comply with those requirements when Mr. Gonzalez was sent there.
The most striking feature of DOCCS's actions in this case is not simply that they were unlawful, but that they were unmoored to the legislature's expressed penological policy. This is most vividly on display when we come to consider Mr. Gonzalez's entitlement to the good-time credit he earned.
I agree with the majority that the good-time credit issue is moot (majority op at 471 n 3), but conclude that it falls into the mootness exception. Mr. Gonzalez makes two claims: first, that had he not been stripped of his earned good-time credit, he would have been moved to the RTF four months early, starting the six-month RTF clock substantially earlier; second, that his PRS was lengthened unduly (by the amount of his wrongfully deprived good-time credit). I agree with the majority that offenders with longer periods of PRS could bring the second claim, so that it is not likely to evade review, and does not fall within the mootness exception. Mr. Gonzalez's first, RTF-placement-timing claim does fall within the exception, however: it is capable of repetition but will evade our review.
Good-time credits are provided to inmates to encourage them to comply with prison rules and work towards rehabilitation while imprisoned (Matter of Amato v Ward, 41 N.Y.2d 469, 475  ["(i)t is a penological commonplace that it is necessary to provide positive incentives for good behavior in prison"]). DOCCS stripped Mr. Gonzalez of that credit solely because, while he was still in prison, before his transfer to an RTF, he could not locate SARA-compliant housing on his own. DOCCS concedes, and the record shows, it provided no housing assistance whatsoever to Mr. Gonzalez during that time; DOCCS's efforts, as it describes them, came later.
The deprivation was not conducted "in accordance with law" (Correction Law § 803 ). The legislature permits credits to be "withheld, forfeited or canceled in whole or in part for bad behavior, violation of institutional rules or failure to perform properly in the duties or program assigned" (Correction Law § 803  [a]). Nowhere in the statute is DOCCS permitted to revoke good-time credit because all the RTF spaces it has budgeted for are filled at the time an inmate's conditional release date rolls around, or because inmates are unable to find SARA-compliant housing in a location the majority acknowledges is extraordinarily constrained. DOCCS can point to no failure to "perform properly in the duties or program assigned" except, perhaps, Mr. Gonzalez's inability to provide DOCCS with a potential address when there was no hope that any address he proposed within the five boroughs would be approved. It cannot be lawful to condition good behavior credit on the fulfilment of an impossible condition, which is what DOCCS did here. Mr. Gonzalez earned his credit and did nothing to
Even if that deprivation was not ultra vires, it was arbitrary and capricious and accordingly violated due process. Although DOCCS has discretion in revoking good-time credits when an inmate's behavior warrants it, arbitrary or capricious revocation violates an inmate's due process rights (Matter of Laureano v Kuhlmann, 75 N.Y.2d 141, 146 ). Here, DOCCS's revocation was either based on Mr. Gonzalez's failure to fulfil an impossible condition or on factors entirely outside Mr. Gonzalez's control. This is the essence of arbitrary conduct.
Instead, had DOCCS released Mr. Gonzalez to any homeless shelter in New York City, the City would have been required to find him a bed, because the City guarantees (and indeed must guarantee) housing for every homeless person who requests it (see Callahan v Carey, 307 A.D.2d 150, 151 [1st Dept 2003] [describing the August 1981 consent decree requiring New York City to provide temporary shelter to homeless individuals]; cf. 18 NYCRR 352.36 [a]  [iii] [obliging local governments to provide temporary housing assistance for sex offenders]) and when, after all, DOCCS belatedly elected to discharge Mr. Gonzalez to such a shelter anyway.
What DOCCS has done to Mr. Gonzalez is neither statutorily authorized nor penologically justified. It should not stand. I accordingly dissent.
Judges STEIN, FAHEY, GARCIA and FEINMAN concur; Judge RIVERA concurs in part and dissents in part for the reasons stated in sections I through III of Judge WILSON'S dissenting opinion; Judge WILSON dissents in an opinion.
Order modified, without costs, in accordance with the opinion herein and, as so modified, affirmed.