Smith v. Vann

53 A.D.3d 945, 861 N.Y.S.2d 526

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 24, 2008
• Status: Published

Opinion

Appeal from a judgment of the Supreme Court (Feldstein, J.), entered August 16, 2007 in Clinton County, which converted petitioner’s application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, into a proceeding pursuant to CPLR article 78 and dismissed the petition.

After completing a six-month shock incarceration program, petitioner was released to parole supervision. He was subsequently declared delinquent twice and his parole was revoked following a hearing. The Administrative Law Judge imposed a delinquent time assessment of 24 months pursuant to 9 NYCRR 8010.3 and estimated that the date when petitioner would be eligible for re-release to parole would be March 13, 2008. Before a decision was rendered on his administrative appeal, petitioner commenced this habeas corpus proceeding challenging the computation of the date that he would be eligible for re-release to parole pursuant to 9 NYCRR 8010.3. Following joinder of issue, Supreme Court converted the proceeding to a proceeding pursuant to CPLR article 78 and dismissed the petition. Petitioner appeals.

The Attorney General has advised that petitioner was re-released to parole supervision on March 7, 2008. In view of this, and given that his challenge on appeal is confined to the calculation of the date he is eligible to be re-released to parole supervision under 9 NYCRR 8010.3, his appeal is now moot and must be dismissed (see Matter of Lacy v Hunt, 49 AD3d 1048 [2008]).

Peters, J.P., Rose, Lahtinen, Kavanagh and Stein, JJ., concur. Ordered that the appeal is dismissed, as moot, without costs. [See 16 Mise 3d 1132(A), 2007 NY Slip Op 51675(H).]