Matter of Diaz v Ledbetter

Matter of Diaz v Ledbetter 2013 NY Slip Op 07534 Decided on November 14, 2013 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: November 14, 2013
516032

[*1]In the Matter of FABRICIO DIAZ, Appellant,

v

PRISCILLA LEDBETTER, as Director of Temporary Release Programs, Respondent.

Calendar Date: October 10, 2013
Before: Rose, J.P., Lahtinen, Stein and Garry, JJ.


Fabricio Diaz, Ozone Park, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany
(Martin A. Hotvet of counsel), for respondent.

MEMORANDUM AND ORDER


Garry, J.

Appeal from a judgment of the Supreme Court (Melkonian, J.), entered October 18, 2012 in Albany County, which, in a proceeding pursuant to CPLR article 78, dismissed the petition.

In September 2011, petitioner applied to participate in a temporary prison work release program and his application was denied based upon the serious nature of his crime, as well as his prior convictions and sanctions imposed while incarcerated. Petitioner filed a timely administrative appeal but, prior to receiving a response to that appeal, he commenced this CPLR article 78 proceeding seeking to challenge the denial. Following the service of respondent's answer, Supreme Court dismissed the proceeding for petitioner's failure to exhaust his administrative remedies, after which petitioner sought to appeal to this Court. However, this Court has been advised that, as of September 28, 2013, petitioner has been released on parole. Because petitioner is no longer incarcerated and, accordingly, is no longer affected by the determination that denied his temporary work release application, this appeal must be dismissed as moot (see Matter of Gallo v New York State Temporary Release Program, 100 AD3d 1165, 1166 [2012]; Matter of Shell v New York State Dept. of Corrections Temporary Release Program, 26 AD3d 537, 537 [2006]). [*2]

Rose, J.P., Lahtinen and Stein, JJ., concur.

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