Opinion
KAH 01-00688
November 15, 2002.
Appeal from a judgment (denominated order) of Supreme Court, Erie County (Michalek, J.), entered January 12, 2001, which dismissed the petition for a writ of habeas corpus.
SALVATORE C. ADAMO, BUFFALO, FOR PETITIONER-APPELLANT.
ELIOT SPITZER, ATTORNEY GENERAL, ALBANY (KATHLEEN H. TREASURE OF COUNSEL), FOR RESPONDENTS-RESPONDENTS.
PRESENT: WISNER, J.P., HURLBUTT, SCUDDER, GORSKI, AND LAWTON, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that said appeal be and the same hereby is unanimously dismissed without costs.
Memorandum:
Petitioner appeals from a judgment that dismissed his petition for a writ of habeas corpus seeking to vacate a determination by the Parole Board denying his request for parole release. This appeal must be dismissed as moot because the determination expired during the pendency of this appeal, and the Parole Board denied petitioner's subsequent request for parole release (see Matter of Phillips v Travis, 289 A.D.2d 1035; Matter of Alicea v. New York State Div. of Parole, 265 A.D.2d 769). In any event, we note that Supreme Court properly dismissed the petition because the issue raised therein could have been raised on direct appeal or by a postjudgment motion pursuant to CPL article 440 ( see People ex rel. St. Germain v. Walker, 202 A.D.2d 1053, lv denied 83 N.Y.2d 758; see also People ex rel. Johnson v. Walker, 262 A.D.2d 1005, lv denied 93 N.Y.2d 818, cert denied 528 U.S. 1165).