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Butler v. New York State Division of Parole

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


June 10, 2010

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

The opinion of the court was delivered by: McCarthy, J.

MEMORANDUM AND ORDER

Calendar Date: April 23, 2010

Before: Cardona, P. J., Spain, Stein, McCarthy and Egan Jr., JJ.

Appeal from a judgment of the Supreme Court (Feldstein, J.), entered March 24, 2009 in Clinton County, which granted petitioner's application, in a proceeding pursuant to CPLR article 78, to annul a determination of the Board of Parole denying petitioner's request for parole release.

Petitioner is an inmate serving sentences for numerous convictions, including multiple prison terms of 15 years to life. At his first appearance before the Board of Parole in 2007, the Board denied his request for parole release and ordered that he be held an additional 24 months. Petitioner commenced this proceeding challenging the Board's determination. Supreme Court granted the petition. Respondent appeals.

Based upon petitioner's reappearance before the Board in June 2009, where his request for parole release was again denied, the instant appeal must be dismissed as moot (see Matter of Williams v Alexander, 65 AD3d 1412, 1413 [2009]; Matter of Lebron v Travis, 47 AD3d 1142, 1142 [2008], lv denied 10 NY3d 707 [2008]). Contrary to respondent's contention, this matter does not fit within the exception to the mootness doctrine (see Matter of Banks v Dennison, 57 AD3d 1041, 1041 [2008], lv dismissed 12 NY3d 905 [2009]; compare Matter of Lebron v Alexander, 68 AD3d 1476, 1477 [2009] [applying exception where same issue was raised as here, because issue was novel at that point]).

Cardona, P. J., Spain, Stein and Egan Jr., JJ., concur.

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

20100610

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