
    In the Matter of John A. Vogler, Appellant-Respondent, v Harold J. Smith, as Superintendent of Attica Correctional Facility, Respondent-Appellant.
    Argued December 12, 1979;
    decided December 19, 1979
   Appeal and cross appeal dismissed, without costs. In view of the expiration of petitioner’s maximum sentence and his release from prison, petitioner’s appeal is moot. Respondent Superintendent of Attica Correctional Facility, who prevailed in the court below, may not complain of the basis for the dismissal of the proceeding (see Cohen and Karger, Powers of the New York Court of Appeals, § 91, p 395; Matter of Ton-DaLay v Diamond, 36 NY2d 856).  