Shannon v. Kelly

147 A.D.2d 896, 538 N.Y.S.2d 727, 1989 N.Y. App. Div. LEXIS 1226

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 3, 1989
• Status: Published

Opinion

—Appeal unanimously dismissed as moot, in accordance with the following memorandum: Subsequent to the entry of the judgment herein, petitioner’s maximum term of imprisonment expired and petitioner was discharged from the jurisdiction of the Board of Parole. Accordingly, the appeal has been rendered academic and must be dismissed as moot (see, Matter of Stephens v New York State Div. of Parole, 135 AD2d 637, 638). Were we to reach the merits, we would affirm because the court properly converted the habeas corpus to a CPLR article 78 proceeding (see, CPLR 103 [c]; People ex rel. Dawson v Smith, 69 NY2d 689; People ex rel. South v Hammock, 80 AD2d 947, appeal dismissed 53 NY2d 938) and dismissed the proceeding as time barred (see, CPLR 217; People ex rel. Jelich v Smith, 105 AD2d 1125, Iv denied 64 NY2d 606). (Appeal from judgment of Supreme Court, Wyoming County, Dadd, J. — habeas corpus.) Present — Dillon, P. J., Doerr, Green, Pine and Davis, JJ.