State of New York Supreme Court, Appellate Division Third Judicial Department
May 19, 2011
THE PEOPLE OF THE STATE OF NEW YORK EX REL. JAMES F. PHILLIPS, APPELLANT,
DARWIN LACLAIR, AS SUPERINTENDENT OF FRANKLIN CORRECTIONAL FACILITY, ET AL., RESPONDENTS.
Appeal from a judgment of the Supreme Court (Feldstein, J.), entered July 30, 2010 in Franklin County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 70, without a hearing.
MEMORANDUM AND ORDER
Calendar Date: April 6, 2011
Before: Spain, J.P., Malone Jr., Stein, McCarthy and Egan Jr., JJ.
In December 2001, petitioner was sentenced upon his conviction of criminal sale of a controlled substance in the third degree to 5 to 10 years in prison and, as a result of the revocation of his probation, to 1a to 4 years in prison upon his prior conviction of attempted criminal possession of a forged instrument in the second degree, which sentences were to run concurrently. In May 2005, he was granted merit presumptive release to parole supervision (see Correction Law §§ 803, 806
). However, in September 2007, as a result of his conviction of attempted forgery in the second degree, for which he was sentenced to 11/2 to 3 years in prison, his merit presumptive release was revoked by operation of law and he was returned to the custody of the Department of Correctional Services for a recomputation of his conditional release and maximum expiration dates. Petitioner commenced this CPLR article 70 proceeding for a writ of habeas corpus challenging the legality of his detention on the ground that, pursuant to Executive Law § 259-j (3-a), his 2001 sentence terminated because his merit presumptive release was unrevoked for a period in excess of two years. Supreme Court dismissed the petition without a hearing, resulting in this appeal.
The Attorney General has advised this Court that, during the pendency of this appeal, petitioner was released to parole supervision and has since been discharged. Inasmuch as he is no longer incarcerated or subject to the jurisdiction of the Board of Parole, the appeal is moot and must be dismissed (see People ex rel. VanGuilder v Fischer, 79 AD3d 1499, 1499 ; People ex rel. McAdoo v Taylor, 31 AD3d 847, 848 ).
Spain, J.P., Malone Jr., Stein, McCarthy and Egan Jr., JJ., concur.
ORDERED that the appeal is dismissed, as moot, without costs.
ENTER: Robert D. Mayberger Clerk of the Court
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