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People ex rel Allen v. Warden

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


April 21, 2009

THE PEOPLE OF THE STATE OF NEW YORK, EX REL. WILLIAM ALLEN, PETITIONER-APPELLANT,
v.
WARDEN, GMDC, NEW YORK STATE DIVISION OF PAROLE, ET AL., RESPONDENTS-RESPONDENTS.

Appeal from an order of Supreme Court, Bronx County (Analisa Torres, J.), entered May 15, 2007, which dismissed the petition for a writ of habeas corpus, unanimously dismissed as moot, without costs.

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.

Andrias, J.P., Nardelli, McGuire, Acosta, DeGrasse, JJ.

75077/06

After the order denying the petition was entered, the charges against petitioner were sustained following a final revocation hearing. This appeal is not moot only if the alleged defect with respect to the issuance of the warrant can be likened to a jurisdictional defect in an accusatory instrument filed in a criminal action (see People v Alejandro, 70 NY2d 133 [1987]). Here, however, at most the issuance of the warrant was inconsistent with a regulation of the Division of Parole, 9 NYCRR 8004.2(a) and (b), rather than a statute enacted by the Legislature. Without deciding the issue of whether the warrant was issued in violation of the regulation, we conclude that the alleged defect cannot be likened to such a jurisdictional defect. Accordingly, "the rights of the parties cannot be affected by the determination of this appeal and it is therefore moot" (Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]). Although the question of mootness is not raised by the parties, the prohibition against deciding "academic, hypothetical, moot, or otherwise abstract questions is founded both in constitutional separation-of-powers doctrine, and in methodological strictures which inhere in the decisional process of a common-law judiciary." (id. at 713-714 [1980]) and we can and should resolve it sua sponte (see Matter of Grand Jury Subpoenas, 72 NY2d 307, 311 [1988]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090421

© 1992-2009 VersusLaw Inc.



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