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In the Matter of Richard Sunday Ifill v. andrea W. Evans

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


August 4, 2011

IN THE MATTER OF RICHARD SUNDAY IFILL, APPELLANT,
v.
ANDREA W. EVANS, AS CHAIR OF THE NEW YORK STATE DIVISION OF PAROLE, RESPONDENT.

Appeal from a judgment of the Supreme Court (Platkin, J.), entered December 3, 2010 in Albany County, which, in a proceeding pursuant to CPLR article 78, remanded the matter to the Board of Parole for a de novo hearing.

MEMORANDUM AND ORDER

Calendar Date: June 8, 2011

Before: Mercure, J.P., Peters, Lahtinen, Stein and McCarthy, JJ.

Petitioner commenced this CPLR article 78 proceeding challenging a January 2010 determination of the Board of Parole denying his request for parole release. He alleged, among other things, that the Board failed to take into consideration his sentencing minutes. Among the relief requested was that he be immediately released from prison. In lieu of serving an answer, respondent submitted a letter agreeing to provide petitioner with a de novo hearing. Supreme Court, in turn, ordered that the case be remanded to the Board to conduct a de novo parole hearing.

Petitioner now appeals.

Petitioner objects to the granting of the de novo hearing, and seeks instead to be released to parole supervision. However, the appropriate remedy for a successful challenge to a parole release determination is annulment of that determination and remand for a new parole release hearing (see Matter of Hartwell v Division of Parole, 57 AD3d 1139 [2008]; Matter of Oberoi v Dennison, 55 AD3d 1033 [2008]). Petitioner is not, under the circumstances presented here, entitled to immediate release from custody. Moreover, insofar as petitioner received a de novo hearing in March 2011 at which time his request for parole release was again denied, the appeal is now moot and must be dismissed (see Matter of Andreo v Alexander, 72 AD3d 1178 [2010]; Matter of Schwartz v Dennison, 40 AD3d 218 [2007]).

Mercure, J.P., Peters, Lahtinen, Stein and McCarthy, JJ., concur.

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

ENTER:

Robert D. Mayberger Clerk of the Court

20110804

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