State of New York Supreme Court, Appellate Division Third Judicial Department
January 17, 2013
IN THE MATTER OF TIMOTHY PAYNE, APPELLANT,
ANDREA W. EVANS, AS CHAIR OF THE DIVISION OF PAROLE, RESPONDENT.
MEMORANDUM AND ORDER
Calendar Date: December 17, 2012
Before: Peters, P.J., Lahtinen, Spain, Garry and Egan Jr., JJ.
Appeal from a judgment of the Supreme Court (Zwack, J.), entered April 9, 2012 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.
Petitioner commenced this CPLR article 78 proceeding challenging an October 2010 determination of the Board of Parole denying his request for parole release. Supreme Court dismissed the petition, resulting in this appeal. The Attorney General has advised this Court that, during the pendency of this appeal, petitioner reappeared before the Board at which time his request for parole release was again denied. In view of this, the appeal must be dismissed as moot (see Matter of Harris v New York State Bd. of Parole, 91 AD3d 1010, 1010 ; Matter of Russo v New York State Div. of Parole, 89 AD3d 1305, 1305 ). Contrary to petitioner's claim, we do not find the exception to the mootness doctrine applicable here (see Matter of Marcelin v Evans, 86 AD3d 880, 881 ; Matter of Borcsok v New York State Bd. of Parole, 76 AD3d 1167, 1167 , lv dismissed 17 NY3d 773 ).
Peters, P.J., Lahtinen, Spain, Garry and Egan Jr., JJ., concur.
ORDERED that the appeal is dismissed, as moot, without costs.
Robert D. Mayberger Clerk of the Court
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