In the Matter of James Keating, Appellant, v. New York State Division of Parole, Respondent

In the Matter of James Keating, Appellant, v New York State Division of Parole, Respondent. [673 NYS2d 953] [MAJORITY] —Appeal from a judgment of the Supreme Court (Sheridan, J.), entered December 9, 1997 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent denying petitioner’s request for parole. Petitioner, a prison inmate, has reappeared before the State Board of Parole since the parole release hearing giving rise to this appeal and his request for parole release has again been denied. In view of petitioner’s reappearance before the Board, the instant appeal is now moot and must be dismissed (see, Matter of Herrera v New York State Bd. of Parole, 246 AD2d 703; Matter of Smith v Donohue, 243 AD2d 797). Nevertheless, were we to consider the merits of the petition, we would find that the Board’s April 1997 determination was neither arbitrary nor capricious and is supported by substantial evidence in the record. Mikoll, J. P., Mercure, White, Spain and Graffeo, JJ., concur. Ordered that the appeal is dismissed, as moot, without costs.