People ex rel. Brown v Laclair

People ex rel. Brown v LaClair 2010 NY Slip Op 05615 [74 AD3d 1642] June 24, 2010 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 25, 2010

The People of the State of New York ex rel. Michael Brown, Appellant, v Darwin E. LaClair, as Superintendent of Franklin Correctional Facility, Respondent.

—[*1] Michael Brown, Albany, appellant pro se.

Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.

Appeal from a judgment of the Supreme Court (Feldstein, J.), entered April 15, 2009 in Franklin County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 70, without a hearing.

In 1994, petitioner was sentenced as a second felony offender to a prison term of 7½ to 15 years upon his conviction of burglary in the second degree. Petitioner thereafter commenced this habeas corpus proceeding contending that the Department of Correctional Services erred in treating his 1994 sentence as running consecutively to his prior undischarged term. Supreme Court dismissed petitioner's application, finding that the sentencing calculation was proper under People ex rel. Gill v Greene (12 NY3d 1, 4 [2009], cert denied sub nom. Gill v Rock, 558 US —, 130 S Ct 86 [2009]), and this appeal ensued.

The Attorney General advises this Court that petitioner was released from custody on April 21, 2009, having reached the maximum expiration date of his sentence. Accordingly, this appeal is moot (see People ex rel. Kato v Warden, Rikers Is. Correctional Facility, 52 AD3d 320, 321 [2008]; Matter of Ellington v Senkowski, 306 AD2d 662 [2003]). [*2]

Mercure, J.P., Lahtinen, Kavanagh, McCarthy and Egan Jr., JJ., concur. Ordered that the appeal is dismissed, as moot, without costs.