—[*1] Robert S. Dean, Center for Appellate Litigation, New York (Mark W. Zeno of counsel), for appellant.

Robert T. Johnson, District Attorney, Bronx (Andrew S. Holland of counsel), for respondent.

Judith Whiting, New York (Lily Goetz of counsel), for amicus curiae.

Appeal from order, Supreme Court, Bronx County (John P. Collins, J.), entered December 2, 2009, which denied, on the ground of ineligibility, defendant's CPL 440.46 motion to be resentenced, unanimously dismissed as moot.

Defendant contends that the motion court erred in concluding that, as a reincarcerated parole violator, defendant was ineligible for resentencing to a determinate sentence. Were we to accept that argument, the proper corrective action would be a remand to the motion court for a discretionary determination of the motion. However, during the pendency of this appeal, defendant has again been released on parole. Since he is not in custody, he is not presently eligible for resentencing (CPL 440.46 [1]). Therefore, this appeal is moot, and we do not find applicable the exception to the mootness doctrine set forth in Matter of Hearst Corp. v Clyne (50 NY2d 707, 714-715 [1980]). Concur—Andrias, J.P., Saxe, Catterson, Freedman and Abdus-Salaam, JJ.

Motion seeking leave to file amicus curiae[*2] brief granted.