In People v. Orta, 2010 WL 1791222, 73 A.D.3d 452, 899 N.Y.S.2d 610, 2010 NY Slip Op. 03836, 2010 N.Y. App. Div, the trial court had held that the Defendant was not eligible for resentencing under the 2009 DLRA because he had previously been released on parole and then reincarcerated for a parole violation. The First Department noted that if it were to accept that argument, it would be required to remit the case to the trial court for a discretionary determination with respect to the motion. The Court then went on to hold that it was not required to reach that issue because subsequent to making his motion, the Defendant had been released on parole: . . . 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, 409 N.E.2d 876, 431 N.Y.S.2d 400 (1980).