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Till v. Chair of the Division of Parole

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


March 18, 2010

IN THE MATTER OF MIKE TILL, APPELLANT,
v.
CHAIR OF THE DIVISION OF PAROLE, RESPONDENT.

MEMORANDUM AND ORDER

Calendar Date: January 25, 2010

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

Appeal from a judgment of the Supreme Court (McNamara, J.), entered August 27, 2009 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent's motion to dismiss the petition.

Petitioner, who is serving a prison sentence of 15 years to life upon his conviction of criminal possession of a weapon in the second degree, commenced this CPLR article 78 proceeding challenging a July 2007 determination of the Board of Parole denying his request for parole release. Citing petitioner's reappearance before the Board, respondent moved to dismiss the petition as moot. Supreme Court dismissed the petition and this appeal ensued.

We affirm. Inasmuch as petitioner reappeared before the Board in April 2009 and was again denied parole release, petitioner's appeal is moot and must be dismissed (see Matter of Agosta v Alexander, 67 AD3d 1086 [2009]; Matter of Johnson v New York State Div. of Parole, 54 AD3d 464 [2008], lv denied 11 NY3d 711 [2008]). While petitioner argues that the issue of his entitlement to the expungement of certain information from his institutional files comes within the exception to the mootness doctrine, the record before us contains no evidence to substantiate petitioner's claim. In any event, if there is incorrect information in petitioner's file and the Board were to rely upon it in a future determination, it would be reviewable in a subsequent CPLR article 78 proceeding (see Matter of Saratoga Harness Racing v Corbisiero, 216 AD2d 776, 778 [1995]).

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

ORDERED that the judgment is affirmed, without costs.

20100318

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