                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: August 7, 2014                    517608
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THE PEOPLE OF THE STATE OF
   NEW YORK ex rel. ANTHONY
   ALBERT,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

ERIC T. SCHNEIDERMAN, as
   Attorney General, et al.,
                    Respondents.
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Calendar Date:   June 9, 2014

Before:   Lahtinen, J.P., McCarthy, Egan Jr., Lynch and Clark, JJ.

                             __________


     Anthony Albert, New York City, appellant pro se.

      Eric T. Schneiderman, Attorney General, Albany (Martin A.
Hotvet of counsel), for respondents.

                             __________


      Appeal from a judgment of the Supreme Court (Work, J.),
entered October 30, 2013 in Ulster County, which denied
petitioner's application, in a proceeding pursuant to CPLR
article 70, without a hearing.

      Petitioner was convicted of attempted criminal possession
of a weapon in the third degree and, in 1997, was sentenced to a
prison term of two years to life. Petitioner was released to
parole supervision, which subsequently was revoked on multiple
occasions. After petitioner was charged with new drug offenses
in 2013, his parole again was revoked and a time assessment of
one year was imposed. Petitioner then commenced this habeas
corpus proceeding, arguing that he was entitled to mandatory
termination of his sentence pursuant to Executive Law § 259-j
                              -2-                  517608

former (3-a). Supreme Court dismissed the petition, and this
appeal ensued.

      Initially, respondents advise us that petitioner again has
been released to parole supervision. Nonetheless, because "the
maximum expiration date of his sentence remains affected by the
issues presented," we will not dismiss this matter as moot and
will instead consider it as a CPLR article 78 proceeding (People
ex rel. Speights v McKoy, 88 AD3d 1039, 1040 [2011]; see People
ex rel. Howard v Yelich, 87 AD3d 772, 773 [2011]). As to the
merits, inasmuch as petitioner was not convicted of a qualifying
drug felony, he is not entitled to relief under the provisions of
Executive Law § 259-j former (3-a) and current Correction Law
§ 205 (4) (see People ex rel. Williams v Kirkpatrick, 111 AD3d
1327, 1327 [2013]). Petitioner's remaining contention was not
raised before Supreme Court, and, hence, is unpreserved for our
review.

      Lahtinen, J.P., McCarthy, Egan Jr., Lynch and Clark, JJ.,
concur.



     ORDERED that the judgment is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
