IN RE: Frederick J. SMALLEY

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Supreme Court, Appellate Division, Third Department, New York.

IN RE: Frederick J. SMALLEY, Appellant, v. Daniel HOGUE, as Sheriff of Sullivan County, et al., Respondents.

Decided: December 28, 2000

Before:  CARDONA, P.J., MERCURE, MUGGLIN, ROSE and LAHTINEN, JJ. Frederick J. Smalley, Franklin, Pennyslvania, appellant in person. Eliot Spitzer, Attorney-General (David Lawrence III of counsel), New York City, for respondents.

Appeal from a judgment of the Supreme Court (LaBuda, J.), entered April 6, 1999 in Sullivan County, which converted petitioner's application for a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, into a proceeding pursuant to CPLR article 78 and dismissed the petition.

Petitioner commenced this proceeding for a writ of habeas corpus seeking an order transferring him from the County jail where he was incarcerated to a State correctional facility so that he could participate in the necessary programs to be considered for parole release.   Supreme Court converted the proceeding into one pursuant to CPLR article 78 and dismissed the petition as moot.   We affirm.   Inasmuch as the record indicates that petitioner was transferred to a State correctional facility during the pendency of the proceeding, petitioner has “already received the relief to which he would have been entitled if the proceeding had been successful” (Matter of Alstranner v. Selsky, 238 A.D.2d 658, 658, 656 N.Y.S.2d 968).   Accordingly, the matter was properly dismissed as moot (see, Matter of Walker v. Senkowski, 260 A.D.2d 830, 831, 688 N.Y.S.2d 770;  Matter of Alstranner v. Selsky, supra, at 658, 656 N.Y.S.2d 968).   Petitioner's remaining claims have not been preserved for our review and we decline to address them.

ORDERED that the judgment is affirmed, without costs.

MEMORANDUM DECISION.

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