Matter of Phillips v Lemons

Matter of Phillips v Lemons 2010 NY Slip Op 09600 [79 AD3d 1555] December 30, 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

In the Matter of James Phillips, Appellant, v Henry Lemons Jr., as Chair of the Division of Parole, Respondent.

—[*1] James Phillips, Malone, appellant pro se.

Andrew M. Cuomo, Attorney General Albany (Frank Brady of counsel), for respondent.

Appeal from a judgment of the Supreme Court (Lynch, J.), entered March 29, 2010 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.

In 2007, petitioner was convicted of attempted forgery in the second degree and sentenced to 1½ to 3 years in prison. He made his first appearance before the Board of Parole in December 2008 and his request for parole release was denied. This CPLR article 78 proceeding ensued. Supreme Court dismissed the petition, prompting this appeal.

The Attorney General has advised this Court that, during the pendency of this appeal, petitioner reappeared before the Board and was granted an open release date. Accordingly, this appeal must be dismissed as moot (see Matter of Wingate v New York State Div. of Parole, 50 AD3d 1336 [2008]).

Cardona, P.J., Spain, Malone Jr., Kavanagh and McCarthy, JJ., concur. Ordered that the appeal is dismissed, as moot, without costs.