IN RE: Charles BENNETT (1998)

Appeal from a judgment of the Supreme Court (Ceresia Jr., J.), entered July 21, 1997 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondents' motion to dismiss the petition for failure to exhaust administrative remedies.

After being released on parole supervision on April 16, 1987, petitioner was arrested on July 2, 1987.   Next, on July 7, 1987, he received a notice of parole violation for failure to report and waived his right to a preliminary parole violation hearing.   After petitioner refused to attend several scheduled final revocation hearings, one was held in absentia on November 10, 1987 that resulted in a decision by the Parole Board on December 21, 1987 revoking petitioner's parole.   Subsequently, defendant was convicted of several felony offenses and sentenced on March 1, 1989 to an indeterminate prison sentence of 71/212 to 15 years.

Petitioner commenced this CPLR article 78 proceeding seeking to annul the December 1987 parole revocation determination on the ground that he was denied due process because he was never provided with notice of the Board's determination.   Supreme Court dismissed the petition, prompting this appeal.

We affirm on a different ground than that expressed by Supreme Court.   Petitioner's parole was automatically revoked in March 1989 without a hearing by operation of law upon his new felony conviction and indeterminate sentence (see, Executive Law § 259-i[3][d][iii];  see also, People ex rel. Harris v. Sullivan, 74 N.Y.2d 305, 308, 546 N.Y.S.2d 821, 545 N.E.2d 1209;  People ex rel. Ward v. Russi, 219 A.D.2d 862, 632 N.Y.S.2d 45, lv. denied 87 N.Y.2d 803, 639 N.Y.S.2d 311, 662 N.E.2d 792;  Matter of Bonilla v. Russi, 210 A.D.2d 828, 620 N.Y.S.2d 1019).   Therefore, since this revocation superseded the one made in December 1987, any determination of this proceeding by Supreme Court would not have had any impact on the rights or respective positions of the parties and the petition should have been dismissed as moot (see, Matter of Griffin v. Rodriguez, 187 A.D.2d 591, 590 N.Y.S.2d 215).

ORDERED that the judgment is affirmed, without costs.

WHITE, Justice Presiding.

YESAWICH, PETERS, SPAIN and GRAFFEO, JJ., concur.