Matter of Smith v Commissioner of N.Y.State Bd. of Parole

Matter of Smith v Commissioner of N.Y.State Bd. of Parole 2020 NY Slip Op 07444 Decided on December 10, 2020 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: December 10, 2020
530709

[*1]In the Matter of James Smith, Appellant,

v

Commissioner of New York State Board of Parole, Respondent.

Calendar Date: November 13, 2020
Before: Egan Jr., J.P., Clark, Pritzker, Reynolds Fitzgerald and Colangelo, JJ.

James Smith, Collins, appellant pro se.

Letitia James, Attorney General, Albany (Beezly Kiernan of counsel), for respondent.

Appeal from a judgment of the Supreme Court (Collins, J.), entered December 16, 2019 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.

Petitioner commenced this CPLR article 78 proceeding challenging a September 2018 determination of the Board of Parole denying his third request for parole release. Supreme Court dismissed the petition and this appeal ensued. The Attorney General has advised this Court that, during the pendency of this appeal, petitioner reappeared before the Board and was denied parole. In view of this, the appeal is now moot and, contrary to petitioner's contention, we find that the exception to the mootness doctrine is inapplicable (see generally Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714-715 [1980]). As such, the appeal must be dismissed (see Matter of Cruz v Division of Parole, N.Y. State Dept. of Corr. & Community Supervision, 185 AD3d 1369, 1369 [2020]; Matter of Burr v New York State Dept. of Corr. & Community Supervision, Bd. of Parole, 185 AD3d 1361, 1361 [2020], lv dismissed and denied ___ NY3d ___ [Nov. 24, 2020]).

Egan Jr., J.P., Clark, Pritzker, Reynolds Fitzgerald and Colangelo, JJ., concur.

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