Matter of McBride v. Stanford

Appellate Division of the Supreme Court of New York

Matter of McBride v. Stanford

127 A.D.3d 1530, 5 N.Y.S.3d 923

Appellate Division of the Supreme Court of the State of New York·Decided April 30, 2015·No. 519223·Published

Opinion

Appeal from a judgment of the Supreme Court (Zwack, J.), entered June 20, 2014 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent’s motion to dismiss the petition.

In 2012, petitioner was convicted of aggravated vehicular homicide and sentenced to a prison term of 4 to 12 years. Petitioner commenced this CPLR article 78 proceeding, challenging, as is relevant to this appeal, his eligibility for merit time. Supreme Court granted respondent’s motion to dismiss the petition for failure to state a cause of action. Petitioner now appeals.

The Attorney General has advised this Court that petitioner has made his initial appearance before the Board of Parole. Given that “[t]he effect of a merit time allowance would be to accelerate petitioner’s original parole hearing date,” his appearance before the Board renders this appeal moot (Matter of McKeown v Goord, 284 AD2d 622, 622 [2001]; see Matter of Hunter v Commissioner of Correctional Servs., 297 AD2d 891 [2002], lv denied 99 NY2d 506 [2003]).

*1531 Lahtinen, J.P., McCarthy, Lynch and Devine, JJ., concur.

Ordered that the appeal is dismissed, as moot, without costs.

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Appeal from a judgment of the Supreme Court (Zwack, J.), entered June 20, 2014 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent’s motion to dismiss the petition.

In 2012, petitioner was convicted of aggravated vehicular homicide and sentenced to a prison term of 4 to 12 years. Petitioner commenced this CPLR article 78 proceeding, challenging, as is relevant to this appeal, his eligibility for merit time. Supreme Court granted respondent’s motion to dismiss the petition for failure to state a cause of action. Petitioner now appeals.

The Attorney General has advised this Court that petitioner has made his initial appearance before the Board of Parole. Given that “[t]he effect of a merit time allowance would be to accelerate petitioner’s original parole hearing date,” his appearance before the Board renders this appeal moot (Matter of McKeown v Goord, 284 AD2d 622, 622 [2001]; see Matter of Hunter v Commissioner of Correctional Servs., 297 AD2d 891 [2002], lv denied 99 NY2d 506 [2003]).

*1531 Lahtinen, J.P., McCarthy, Lynch and Devine, JJ., concur.

Ordered that the appeal is dismissed, as moot, without costs.

Matter of McBride v. Stanford, 127 A.D.3d 1530, 5 N.Y.S.3d 923 (N.Y. Ct. App. 2015).

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Opinion

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