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LaSalle v. New York State Division of Parole

NEW YORK SUPREME COURT, APPELLATE DIVISION, THIRD DEPARTMENT


November 19, 2009

IN THE MATTER OF SAMUEL LASALLE, APPELLANT,
v.
NEW YORK STATE DIVISION OF PAROLE, RESPONDENT.

MEMORANDUM AND ORDER

Calendar Date: September 30, 2009

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

Appeal from a judgment of the Supreme Court (Cahill, J.), entered April 10, 2009 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 was convicted of murder in the second degree as well as criminal possession of a weapon in the second degree and is currently serving an aggregate term of 20 years to life in prison. In November 2007, a de novo hearing was held by the Board of Parole to consider petitioner's request for parole release. During this hearing, the Board did not consider petitioner's sentencing minutes as they were apparently unavailable. At the conclusion of the hearing, the Board denied petitioner's request and scheduled him to reappear in March 2008. When petitioner failed to receive a timely response to his administrative appeal, he commenced this CPLR article 78 proceeding challenging the Board's November 2007 determination. Respondent moved to dismiss the petition as moot in view of the fact that petitioner had reappeared before the Board in March 2008 and his request for parole release was again denied. Supreme Court denied the motion and directed respondent to serve an answer. Thereafter, the court dismissed the petition on the merits and this appeal ensued.

In view of petitioner's March 2008 reappearance before the Board, the instant appeal must be dismissed as moot (see Matter of Lebron v Travis, 47 AD3d 1142 [2008], lv denied 10 NY3d 707 [2007]). This is consistent with our decision dismissing petitioner's challenge to the Board's April 2006 determination which also denied him parole release (Matter of LaSalle v New York Div. of Parole, 52 AD3d 1071, 1071 [2008], lv denied 11 NY3d 708 [2008]). Furthermore, we note that petitioner has commenced a separate CPLR article 78 proceeding challenging the Board's March 2008 determination. Accordingly, the merits of the Board's November 2007 determination need not be addressed.

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

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

20091119

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