People ex rel. Patterson v. Berbary

299 A.D.2d 850, 749 N.Y.S.2d 198, 2002 N.Y. App. Div. LEXIS 10854

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 2002
• Status: Published

Opinion

Appeal from a judgment (denominated order) of Supreme Court, Erie County (Michalek, J.), entered January 12, 2001, which dismissed the petition for a writ of habeas corpus.

It is hereby ordered that said appeal be and the same hereby is unanimously dismissed without costs.

Memorandum: Petitioner appeals from a judgment that dismissed his petition for a writ of habeas corpus seeking to vacate a determination by the Parole Board denying his request for parole release. This appeal must be dismissed as moot because the determination expired during the pendency of this appeal, and the Parole Board denied petitioner’s subsequent request for parole release (see Matter of Phillips v Travis, 289 AD2d 1035; Matter of Alicea v New York State Div. of Parole, 265 AD2d 769). In any event, we note that Supreme Court properly dismissed the petition because the issue raised therein could have been raised on direct appeal or by a postjudgment motion pursuant to CPL article 440 (see People ex rel. St. Germain v Walker, 202 AD2d 1053, lv denied 83 NY2d 758; see also People ex rel. Johnson v Walker, 262 AD2d 1005, lv denied 93 NY2d 818, cert denied 528 US 1165). Present — Wisner, J.P., Hurlbutt, Scudder, Gorski and Lawton, JJ.