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McFarlan v. New York State Division of Parole

State of New York Supreme Court, Appellate Division Third Judicial Department


July 30, 2009

IN THE MATTER OF MICHAEL MCFARLAN, APPELLANT,
v.
NEW YORK STATE DIVISION OF PAROLE, RESPONDENT.

MEMORANDUM AND ORDER

Calendar Date: June 10, 2009

Before: Mercure, J.P., Spain, Lahtinen, Kavanagh and McCarthy, JJ.

Appeal from a judgment of the Supreme Court (Devine, J.), entered December 19, 2008 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of the Board of Parole denying petitioner's request for parole release.

Petitioner is currently serving a term of 25 years to life in prison having been convicted of multiple serious crimes, including murder in the second degree. In December 2006, he made his second appearance before the Board of Parole seeking parole release. At the conclusion of the hearing, his request was denied and he was ordered held for an additional 24 months. After the determination was affirmed on administrative appeal, petitioner commenced this CPLR article 78 proceeding. Following joinder of issue, Supreme Court dismissed the petition and this appeal ensued.

Since the commencement of the instant proceeding, petitioner has made another appearance before the Board of Parole and his request for parole release was again denied. In view of this, the appeal is now moot and, as such, is dismissed (see Matter of Montalvo v Dennison, 45 AD3d 1162, 1163 [2007]; Matter of Kalwasinski v New York State Division of Parole, 36 AD3d 1200, lv denied 8 NY3d 811 [2007]).

Mercure, J.P., Spain, Lahtinen, Kavanagh and McCarthy, JJ., concur.

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

20090730

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