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In the Matter of James v. Henry Lemons Jr.

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


December 30, 2010

IN THE MATTER OF JAMES PHILLIPS, APPELLANT,
v.
HENRY LEMONS JR., AS CHAIR OF THE DIVISION OF PAROLE, RESPONDENT.

Appeal from a judgment of the Supreme Court (Lynch, J.), entered March 29, 2010 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.

Decided and Entered:

MEMORANDUM AND ORDER

Calendar Date: November 3, 2010

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

In 2007, petitioner was convicted of attempted forgery in the second degree and sentenced to 11/2 to 3 years in prison. He made his first appearance before the Board of Parole in December 2008 and his request for parole release was denied. This CPLR article 78 proceeding ensued. Supreme Court dismissed the petition, prompting this appeal.

The Attorney General has advised this Court that, during the pendency of this appeal, petitioner reappeared before the Board and was granted an open release date. Accordingly, this appeal must be dismissed as moot (see Matter of Wingate v New York State Div. of Parole, 50 AD3d 1336 [2008]).

Cardona, P.J., Spain, Malone Jr., Kavanagh and McCarthy, JJ., concur.

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

ENTER:

Robert D. Mayberger Clerk of the Court

20101230

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