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Perez v. Alexander

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


January 21, 2010

IN THE MATTER OF ANTONIO PEREZ, APPELLANT,
v.
GEORGE ALEXANDER, AS CHAIR OF THE DIVISION OF PAROLE, RESPONDENT.

MEMORANDUM AND ORDER

Calendar Date: November 30, 2009

Before: Mercure, J.P., Peters, Lahtinen, Malone Jr. and McCarthy, JJ.

Appeal from a judgment of the Supreme Court (Devine, J.), entered July 17, 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.

In February 2000, petitioner was sentenced to an aggregate prison term of 51/2 to 11 years for his convictions of the crimes of criminal sale of a controlled substance in the third degree and attempted conspiracy in the second degree. Following a determination of the Board of Parole in August 2007 denying his request for parole release, petitioner commenced this CPLR article 78 proceeding. Initially, Supreme Court vacated the determination and remitted the matter for de novo review inasmuch as the Board failed to consider petitioner's sentencing minutes. Thereafter, having received notice from the sentencing court that the minutes from petitioner's sentencing were unavailable, respondent moved to renew and, upon renewal, Supreme Court dismissed the petition. Petitioner now appeals.

The Attorney General has advised this Court that petitioner reappeared before the Board in June 2009 and was again denied parole release. Accordingly, petitioner's appeal is moot and must be dismissed (see Matter of Alvarez v New York State Div. of Parole, 63 AD3d 1402 [2009], appeal dismissed 13 NY3d 823 [2009]; Matter of Banks v Dennison, 57 AD3d 1041 [2008], lv dismissed 12 NY3d 905 [2009]). We are unpersuaded by petitioner's contention that this matter presents an exception to the mootness doctrine (see Matter of Banks v Dennison, 57 AD3d at 1041; Matter of Rodriguez v Alexander, 55 AD3d 1194 [2008]).

Mercure, J.P., Peters, Lahtinen, Malone Jr. and McCarthy, JJ., concur.

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

20100121

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