Gordon v. N.Y. State Bd. of Parole

179 A.D.3d 682

113 N.Y.S.3d 599 (Mem)

In the Matter of Joseph GORDON, appellant,

v.NEW YORK STATE BOARD OF PAROLE, etc., respondent.

2019-06169

Index No. 51293/18

Supreme Court, Appellate Division, Second Department, New York.

Argued - October 28, 2019

January 8, 2020

Arnold & Porter Kaye Scholer LLP, New York, N.Y. (Jeffrey H. Horowitz, Glenn J. Pogust, Robert Grass, David Reed, and Molly McGrath of counsel), for appellant.

Letitia James, Attorney General, New York, N.Y. (Steven C. Wu and Matthew W. Grieco of counsel), for respondent.

MARK C. DILLON, J.P., RUTH C. BALKIN, FRANCESCA E. CONNOLLY, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

ORDERED that the judgment is affirmed, without costs or disbursements.

Where, during the pendency of a proceeding pursuant to CPLR article 78 to review a denial of release to parole, a petitioner receives a subsequent, de novo parole hearing, after which the New York State Board of Parole (hereinafter the Board) denies release, the challenge to the Board's prior denial is rendered academic, because the petitioner is "being held pursuant to the subsequent determination" ( Matter of Flanders v. New York State Div. of Parole, 14 A.D.3d 703, 703, 788 N.Y.S.2d 617 ; see Matter of Ortiz v. Alexander, 83 A.D.3d 1078, 921 N.Y.S.2d 863 ).

Here, we agree with the Supreme Court's determination to deny the petition challenging the Board's denial of the petitioner's application for release and to dismiss the proceeding as academic, since the petitioner had subsequently appeared before the Board for a de novo hearing, after which he was again denied release (see Matter of Ortiz v. Alexander, 83 A.D.3d 1078, 921 N.Y.S.2d 863 ). Contrary to the petitioner's contention, the issues raised in his petition did not compel the court to consider the merits of the petition under the exception to the mootness doctrine (see Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 715, 431 N.Y.S.2d 400, 409 N.E.2d 876 ; Matter of Watt v. Stanford, 150 A.D.3d 747, 747, 51 N.Y.S.3d 421 ; Matter of Ortiz v. Alexander, 83 A.D.3d 1078, 921 N.Y.S.2d 863 ).

DILLON, J.P., BALKIN, CONNOLLY and IANNACCI, JJ., concur.