IN RE: Joseph GAITO (1997)

Appeal from a judgment of the Supreme Court (Keegan, J.), entered March 13, 1996 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent State Board of Parole denying petitioner's request for parole.

Petitioner is an inmate at Ogdensburg Correctional Facility in St. Lawrence County, serving concurrent prison terms of 5 to 15 years following his conviction in 1988 of eight counts of the crime of use of a child in a sexual performance and one count of sodomy in the second degree.   The victims of these crimes were two children, ages 12 and 13.   Petitioner seeks review of the denial of his application for release on parole in October 1994.   Supreme Court dismissed petitioner's application.   We affirm.

 Petitioner's appeal has been rendered moot by the hearing held before the Parole Board in October 1996, resulting in another denial of his application for parole release.   Even if this were not the case, however, there is no ground upon which to annul the denial of October 1994.   The requisite factors were considered in arriving at the determination denying petitioner's request for parole release, with special emphasis placed upon petitioner's failure to acknowledge the heinous nature of his conduct, including its impact upon his victims, as well as his refusal to participate in the counseling programs available for sex offenders at his correctional facility (see, Matter of Walker v. New York State Div. of Parole, 203 A.D.2d 757, 610 N.Y.S.2d 397;  Matter of Patterson v. New York State Bd. of Parole, 202 A.D.2d 940, 610 N.Y.S.2d 96).

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

MEMORANDUM DECISION.