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People ex rel Oberoi v. Yelich

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


March 12, 2009

THE PEOPLE OF THE STATE OF NEW YORK EX REL. GURPREET OBEROI, APPELLANT,
v.
BRUCE S. YELICH, AS SUPERINTENDENT OF BARE HILL CORRECTIONAL FACILITY, ET AL., RESPONDENTS.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Calendar Date: January 26, 2009

Before: Cardona, P.J., Rose, Lahtinen, Malone Jr. and Kavanagh, JJ.

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Feldstein, J.), entered May 21, 2008 in Franklin County, which denied petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

Petitioner is serving an aggregate prison term of 3 to 9 years following his 2004 conviction of manslaughter in the second degree and leaving the scene of an accident without reporting. Following unsuccessful appearances before the Board of Parole in October 2006 and April 2008, petitioner commenced this CPLR article 70 proceeding seeking to challenge the Board's denials of his respective requests for parole. Supreme Court denied petitioner's application, prompting this appeal.

The record reflects that petitioner was scheduled to reappear before the Board in November 2008, and a review of petitioner's inmate history on the Web site maintained by the Department of Correctional Services reveals that petitioner again has been denied parole and ordered held until September 2010. Under such circumstances, his appeal is now moot (see People ex rel. Perez v Ricks, 279 AD2d 844 [2001]). In any event, "[i]nasmuch as parole decisions are discretionary and prisoners have no right to such release prior to the expiration of their sentences, denial of parole may not be challenged by way of habeas corpus" (People ex rel. Quartararo v Demskie, 238 AD2d 792, 793 [1997], lv denied 90 NY2d 802 [1997] [citation omitted]; see People ex rel. Land v State of New York, 54 AD3d 1113 [2008]; People ex rel. Harris v New York State Div. of Parole, 306 AD2d 938, 939 [2003]).

Cardona, P.J., Rose, Lahtinen, Malone Jr. and Kavanagh, JJ., concur.

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

20090312

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