
    The People of the State of New York ex rel. Michael Allen, Respondent, v Stephen Dalsheim, as Superintendent of the Ossining Correctional Facility, Appellant.
    Argued December 11, 1979;
    decided December 19, 1979
    
      APPEARANCES OF COUNSEL
    
      Robert Abrams, Attorney-General (Gerry E. Feinberg and Samuel A. Hirshowitz of counsel), for appellant.
    Respondent precluded.
   OPINION OF THE COURT

Memorandum.

The appeal should be dismissed.

Respondent was sentenced in 1975 to serve a maximum term of four years, with an expiration date of August 28, 1978. While on parole, he was declared a delinquent and was not returned to custody until more than four months later. A final parole revocation hearing not having been held promptly, however, the Appellate Division ordered that respondent’s petition for a writ of habeas corpus be granted and that he be returned to parole. Since a parolee continues to serve his sentence while in compliance with the terms of his release, respondent’s maximum expiration date could have been extended no more than four months by his delinquency (Penal Law, § 70.40, subd 1, par [a]; subd 3, par [a]). That date having long since passed, the superintendent’s appeal is moot (cf. People ex rel. Higgs v Superintendent Arthur Kill Correctional Facility, 46 NY2d 884; People ex rel. Christian v Vincent, 49 AD2d 914).

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Appeal dismissed, without costs, in a memorandum.  