People ex rel. Cuccio v Racette

People ex rel. Cuccio v Racette 2016 NY Slip Op 03228 Decided on April 28, 2016 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: April 28, 2016
521211

[*1]THE PEOPLE OF THE STATE OF NEW YORK ex rel. ROCCO CUCCIO, Appellant,

v

STEPHEN RACETTE, as Superintendent of Clinton Correctional Facility, Respondent.

Calendar Date: March 24, 2016
Before: McCarthy, J.P., Egan Jr., Rose, Devine and Clark, JJ.

Ellen O'Hara Woods, Blauvelt, for appellant.

Eric T. Schneiderman, Attorney General, Albany (Frank Brady of counsel), for respondent.

Clark, J.

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Feldstein, J.), entered August 22, 2014 in Clinton County, which dismissed petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, without a hearing.

In October 2001, petitioner was sentenced to 15 years in prison upon his conviction of manslaughter in the first degree. The sentence did not include the required period of postrelease supervision and, as a result, petitioner was resentenced pursuant to Penal Law § 70.85 to the originally imposed determinate sentence without any period of postrelease supervision.

Petitioner's conditional release date was March 4, 2014. He, however, declined conditional release because he would be subject to certain conditions imposed by the Board of Parole until he reached the maximum expiration date of his sentence. Instead, he brought this application pursuant to CPLR article 70 for a writ of habeas corpus. Following joinder of issue, Supreme Court dismissed the application without a hearing and this appeal ensued.

Respondent has advised this Court that petitioner was conditionally released from custody in November 2014. In view of this, habeas corpus relief is no longer available and the appeal must be dismissed as moot (see People ex rel. Barnes v Williams, 52 AD3d 1228, 1228 [2008]; People ex rel. Graham v New York State Dept. of Corrections, 280 AD2d 768, 768 [*2][2001]).

McCarthy, J.P., Egan Jr., Rose and Devine, JJ., concur.

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