IN RE: Elbert WELCH (2002)

Appeal from a judgment of the Supreme Court (Sheridan, J.), entered April 4, 2001 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of the Board of Parole revoking petitioner's parole.

While on parole, petitioner was arrested and charged with various crimes.   After preliminary and final parole revocation hearings, his parole was revoked in July 1999 based upon charges that he violated the conditions of his parole by possessing crack cocaine, a handgun and ammunition.   While petitioner's administrative appeal was pending, he was convicted of two felonies based upon conduct committed while on parole.   The Board of Parole thereafter issued a final declaration of delinquency based on the felony convictions.   Petitioner then commenced this CPLR article 78 proceeding to challenge the July 1999 determination revoking his parole.   Supreme Court dismissed the petition as moot and petitioner appeals.

In these circumstances, the revocation of petitioner's parole, which occurred automatically by operation of law upon his conviction of the new felonies (see, Executive Law § 259-i[3][d][iii] ), superceded the July 1999 determination (see, People ex rel. Cook v. Leonardo, 271 A.D.2d 773, 706 N.Y.S.2d 220;  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).   Therefore, inasmuch as any judgment in this proceeding to review the superceded determination would not affect the rights and respective positions of the parties, dismissal of the petition as moot was proper (see, Matter of Adams v. New York State Div. of Parole, 278 A.D.2d 621, 720 N.Y.S.2d 211;  Matter of Bennett v. Kelly, supra ).

ORDERED that the judgment is affirmed, without costs.

CARDONA, P.J.

PETERS, SPAIN, ROSE and LAHTINEN, JJ., concur.