People ex rel. Phillips v LaClair

2011 NY Slip Op 04134 [84 AD3d 1606]

May 19, 2011

Appellate Division, Third Department

As corrected through Wednesday, July 6, 2011

The People of the State of New York ex rel. James F. Phillips,Appellant, v Darwin LaClair, as Superintendent of Franklin Correctional Facility, et al.,Respondents.

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

Eric T. Schneiderman, Attorney General, Albany (Marcus J. Mastracco of counsel), forrespondents.

Appeal from a judgment of the Supreme Court (Feldstein, J.), entered July 30, 2010 inFranklin County, which dismissed petitioner's application, in a proceeding pursuant to CPLRarticle 70, without a hearing.

In December 2001, petitioner was sentenced upon his conviction of criminal sale of acontrolled substance in the third degree to 5 to 10 years in prison and, as a result of therevocation of his probation, to 11/3 to 4 years in prison upon his prior conviction ofattempted criminal possession of a forged instrument in the second degree, which sentences wereto run concurrently. In May 2005, he was granted merit presumptive release to parole supervision(see Correction Law §§ 803, 806 [2]). However, in September 2007, as aresult of his conviction of attempted forgery in the second degree, for which he was sentenced to1½ to 3 years in prison, his merit presumptive release was revoked by operation of law andhe was returned to the custody of the Department of Correctional Services for a recomputation ofhis conditional release and maximum expiration dates. Petitioner commenced this CPLR article70 proceeding for a writ of habeas corpus challenging the legality of his detention on the groundthat, pursuant to Executive Law § 259-j (3-a), his 2001 sentence terminated because hismerit presumptive release [*2]was unrevoked for a period inexcess of two years. Supreme Court dismissed the petition without a hearing, resulting in thisappeal.

The Attorney General has advised this Court that, during the pendency of this appeal,petitioner was released to parole supervision and has since been discharged. Inasmuch as he is nolonger incarcerated or subject to the jurisdiction of the Board of Parole, the appeal is moot andmust be dismissed (see People ex rel.VanGuilder v Fischer, 79 AD3d 1499 [2010]; People ex rel. McAdoo v Taylor, 31 AD3d 847, 848 [2006]).

Spain, J.P., Malone Jr., Stein, McCarthy and Egan Jr., JJ., concur. Ordered that the appeal isdismissed, as moot, without costs.