People ex rel. VanGuilder v Fischer

People ex rel. VanGuilder v Fischer 2010 NY Slip Op 09439 [79 AD3d 1499] December 23, 2010 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 16, 2011

The People of the State of New York ex rel. Christopher VanGuilder, Appellant, v Brian Fischer, as Commissioner of Correctional Services, Respondent.

—[*1] Christopher VanGuilder, South Glens Falls, appellant pro se.

Andrew M. Cuomo, Attorney General, Albany (Marlene O. Tuczinski of counsel), for respondent.

Appeal from a judgment of the Supreme Court (Feldstein, J.), entered April 30, 2010 in Franklin County, which denied petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

In 2004, petitioner was sentenced as a second felony offender to a prison term of 3 to 6 years upon his conviction for criminal possession of a controlled substance in the fifth degree. He thereafter commenced this habeas corpus proceeding contending that his sentence was illegally altered after he was refused admission into a shock incarceration program. Supreme Court denied petitioner's application without a hearing and this appeal ensued.

This Court has been advised by the Attorney General that petitioner reached the maximum expiration date of his sentence and was released from custody on July 19, 2010. Accordingly, habeas corpus relief is no longer available and the appeal must be dismissed as moot (People ex rel. Brown v LaClair, 74 AD3d 1642, 1643 [2010]; People ex rel. McAdoo v Taylor, 31 AD3d 847, 848 [2006]).

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