IN RE: Joseph ADAMS (2000)

Appeal from a judgment of the Supreme Court (Keegan, J.), entered March 14, 2000 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent's motion to dismiss the petition for failure to exhaust administrative remedies.

While on parole release, petitioner was arrested on September 22, 1997 and charged with burglary in the third degree, possession of burglary tools, petit larceny, resisting arrest and criminal mischief in the fourth degree.   Following a final parole revocation hearing, petitioner was found to have violated the terms of his parole with respect to resisting arrest and his parole was revoked with the recommendation that he be held for the remainder of his sentence.

Petitioner commenced this CPLR article 78 proceeding to challenge the revocation of his parole, claiming that he was never given notice of the hearing and the final revocation hearing was untimely.   Petitioner further contends that he was never notified of the final determination in order to perfect an appeal therefrom.   Supreme Court dismissed the petition on the ground that claimant failed to exhaust his administrative remedies.   This appeal ensued.

Supreme Court's judgment should be affirmed, albeit on different grounds.   Petitioner's conviction of the crime of burglary in the third degree and sentence of 2 to 4 years in prison on June 15, 1998, stemming from the September 22, 1997 arrest, resulted in an automatic revocation of petitioner's parole by operation of law (see, Executive Law § 259-i[3][d][iii];  see also, Matter of Bennett v. Kelly, 251 A.D.2d 776, 674 N.Y.S.2d 797, lv. denied 92 N.Y.2d 811, 680 N.Y.S.2d 457, 703 N.E.2d 269;  Matter of Froats v. Rodriguez, 157 A.D.2d 981, 983, 550 N.Y.S.2d 465).   Inasmuch as any determination of this proceeding by Supreme Court would not affect the rights and respective positions of the parties, the petition should have been dismissed as moot (see, Matter of Bennett v. Kelly, supra;  Matter of Griffin v. Rodriguez, 187 A.D.2d 591, 590 N.Y.S.2d 215).   Accordingly, we decline to address the merits of petitioner's appeal.

ORDERED that the judgment is affirmed, without costs.