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Ashe v. Joy

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


May 6, 2010

IN THE MATTER OF DWIGHT ASHE, APPELLANT,
v.
DEBRA JOY, AS DIRECTOR OF TEMPORARY RELEASE PROGRAMS, RESPONDENT,

MEMORANDUM AND ORDER

Calendar Date: April 7, 2010

Before: Peters, J.P., Malone Jr., Kavanagh, Garry and Egan Jr., JJ.

Appeal from a judgment of the Supreme Court (Lynch, J.), entered September 22, 2009 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent denying his application to participate in a temporary work release program.

In December 2008, while he was incarcerated at Mohawk Correctional Facility in Oneida County, petitioner applied to participate in a temporary work release program. His application was denied based upon the serious nature of the crime he committed. The determination was subsequently upheld on administrative appeal. Petitioner then commenced this CPLR article 78 proceeding challenging the determination. Following service of respondent's answer, Supreme Court dismissed the petition. This appeal ensued.

The Attorney General has advised this Court that, since the commencement of the instant proceeding, petitioner has reapplied for temporary work release and his application was once again denied. In light of this, the appeal must be dismissed as moot (see Matter of Kelly v Joy, 64 AD3d 1009 [2009], lv denied 13 NY3d 710 [2009]; Matter of Daniels v Goord, 27 AD3d 790 [2006]). Contrary to petitioner's claim, the exception to the mootness doctrine is not applicable to the circumstances presented here.

Peters, J.P., Malone Jr., Kavanagh, Garry and Egan Jr., JJ., concur.

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

20100506

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