Shannon v. Kelly

• Decision Date: 03 February 1989
• Citation: 538 N.Y.S.2d 727,147 A.D.2d 896
• Parties: Matter of Darnell SHANNON, Appellant, v. Walter R. KELLY, Superintendent, Attica Correctional Facility, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 727

538 N.Y.S.2d 727

147 A.D.2d 896

Matter of Darnell SHANNON, Appellant, v. Walter R. KELLY, Superintendent, Attica Correctional Facility, Respondent.

Supreme Court of New York, Appellate Division, Fourth Department.

February 3, 1989

Norman P. Effman, by Leigh Anderson, Attica, for appellant. Robert Abrams, Atty. Gen., Albany, by Mark Walling, Buffalo, for respondent.

Appeal unanimously dismissed as moot, in accordance with the following Memorandum: Subsequent to the entry of the judgment herein, petitioner's maximum term of imprisonment expired and petitioner was discharged from the jurisdiction of the Board of Parole. Accordingly, the appeal has been rendered academic and must be dismissed as moot (see, Matter of Stephens v. New York State Div. of Parole, 135 A.D.2d 637, 638, 522 N.Y.S.2d 217). Were we to reach the merits, we would affirm because the court properly converted the habeas corpus to an article 78 proceeding (see, CPLR 103, subd [c]; People ex rel. Dawson v. Smith, 69 N.Y.2d 689, 512 N.Y.S.2d 19, 504 N.E.2d 386; People ex rel. South v. Hammock, 80 A.D.2d 947, 438 N.Y.S.2d 34, appeal dismissed 53 N.Y.2d 938) and dismissed the proceeding as time-barred (see, CPLR 217; People ex rel. Jelich v. Smith, 105 A.D.2d 1125, 482 N.Y.S.2d 391, lv. denied 64 N.Y.2d 606, 487 N.Y.S.2d 1026, 476 N.E.2d 653). (Appeal from Judgment of Supreme Court, Wyoming County, Dadd, J.--Habeas Corpus.)

DILLON, P.J., and DOERR, GREEN, PINE and DAVIS, JJ., concur.