MatterofMoorevNewYorkStateDivisionofParole

                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: September 11, 2014                   517913
________________________________

In the Matter of JAMES R.
   MOORE,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

NEW YORK STATE DIVISION OF
   PAROLE,
                    Respondent.
________________________________


Calendar Date:   August 4, 2014

Before:   Peters, P.J., Lahtinen, McCarthy, Garry and Rose, JJ.

                             __________


     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 AD3d 1308, 1308 [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
                              -2-                  517913

by way of a writ of habeas corpus" (People ex rel. Borrell v New
York State Bd. of Parole, 85 AD3d 1515, 1515-1516 [2011], lv
denied 17 NY3d 718 [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 AD3d 1188,
1190 [2014]; People ex rel. Backus v Broome County Dept. of
Social Servs., 240 AD2d 786, 787 [1997]; see also Executive Law
§ 259-b [1]).

      Peters, P.J., Lahtinen, McCarthy, Garry and Rose, JJ.,
concur.



      ORDERED that the appeal is dismissed, as moot, without
costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court