Opinion
2014-09-11
In the Matter of James R. MOORE, Appellant, v. NEW YORK STATE DIVISION OF PAROLE, Respondent.
James R. Moore, Coxsackie, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Treasure of counsel), for respondent.
James R. Moore, Coxsackie, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Treasure of counsel), for respondent.
Appeal from a judgment of the Supreme Court (Elliott III, J.), entered October 16, 2013 in Greene 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 to challenge a July 2012 determination of the Board of Parole that denied his request for parole release. The Attorney General has advised this Court that petitioner reappeared before the Board in July 2014 and was again denied parole release. Thus, the appeal is now moot ( see Matter of Jackson v. New York State Div. of Parole, 116 A.D.3d 1308, 1308, 983 N.Y.S.2d 911 [2014] ). Petitioner urges us to treat this matter as a habeas corpus proceeding and nevertheless reach the merits, but “the denial of parole may not be challenged by way of a writ of habeas corpus” (People ex rel. Borrell v. New York State Bd. of Parole, 85 A.D.3d 1515, 1515–1516, 925 N.Y.S.2d 922 [2011], lv. denied17 N.Y.3d 718, 2011 WL 5839595 [2011] ). To the extent that petitioner additionally attacks the legality of his sentence, his failure to name as respondent the “person having custody of” him renders any request for a writ of habeas corpus procedurally defective (CPLR 7004[b]; see Matter of Wisniewski v. Michalski, 114 A.D.3d 1188, 1190, 979 N.Y.S.2d 745 [2014]; People ex rel. Backus v. Broome County Dept. of Social Servs., 240 A.D.2d 786, 787, 658 N.Y.S.2d 709 [1997]; see alsoExecutive Law § 259–b [1] ).
ORDERED that the appeal is dismissed, as moot, without costs. PETERS, P.J., LAHTINEN, McCARTHY, GARRY and ROSE, JJ., concur.