Opinion
520441.
09-24-2015
In the Matter of Warren FOSTER, Appellant, v. NEW YORK STATE PAROLE BOARD, Respondent.
Warren Foster, Moravia, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Frank Brady of counsel), for respondent.
Warren Foster, Moravia, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany (Frank Brady of counsel), for respondent.
Before: LAHTINEN, J.P., GARRY, DEVINE and CLARK, JJ.
Opinion Appeal from a judgment of the Supreme Court (McCarthy, J.), entered December 12, 2014 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent's motion to dismiss the petition.
Petitioner is currently serving a prison term of 16 years to life as a result of his conviction of robbery in the second degree (People v. Foster, 300 A.D.2d 131, 750 N.Y.S.2d 761 [2002], lv. denied 99 N.Y.2d 628, 760 N.Y.S.2d 109, 790 N.E.2d 283 [2003] ). He reappeared before the Board of Parole in May 2014 and, following a hearing, the Board denied his application for discretionary parole release and ordered him held for an additional 24 months. Petitioner filed a notice of appeal to the Board's appeals unit but subsequently withdrew it. Thereafter petitioner commenced this CPLR article 78 proceeding challenging the Board's determination denying parole. Supreme Court granted respondent's motion to dismiss based upon petitioner's failure to exhaust administrative remedies, prompting this appeal.
We affirm. Under established law, “one who objects to the act of an administrative agency must exhaust available administrative remedies before being permitted to litigate in a court of law” (Town of Oyster Bay v. Kirkland, 19 N.Y.3d 1035, 1038, 954 N.Y.S.2d 769, 978 N.E.2d 1237 [2012], cert. denied ––– U.S. ––––, 133 S.Ct. 1502, 185 L.Ed.2d 550 [2013] [internal quotation marks and citation omitted]; see Matter of Adams v. Evans, 92 A.D.3d 1056, 1057, 937 N.Y.S.2d 901 [2012] ; Matter of Connerton v. Ryan, 86 A.D.3d 698, 699, 926 N.Y.S.2d 741 [2011] ; see also Executive Law § 259–i [4] ; 9 NYCRR 8006.1 et seq. ). Supreme Court correctly found that petitioner's withdrawal of his administrative appeal and consequent failure to perfect his appeal and exhaust his administrative remedies preclude judicial review of respondent's determination (see Piedra v. New York State Div. of Parole, 117 A.D.3d 477, 477, 985 N.Y.S.2d 238 [2014] ; Matter of Adams v. Evans, 92 A.D.3d at 1057, 937 N.Y.S.2d 901 [2012] ; Matter of Boddie v. Alexander,
65 A.D.3d 1446, 1447, 885 N.Y.S.2d 787 [2009], appeal dismissed 13 N.Y.3d 886, 893 N.Y.S.2d 832, 921 N.E.2d 599 [2009] ). Petitioner's mere assertion of constitutional claims does not relieve him of the obligation to first exhaust administrative remedies that could provide the requested relief (see Town of Oyster Bay v. Kirkland, 19 N.Y.3d at 1038, 954 N.Y.S.2d 769, 978 N.E.2d 1237 ; accord Matter of Schulz v. State of New York, 86 N.Y.2d 225, 232, 630 N.Y.S.2d 978, 654 N.E.2d 1226 [1995] ; Matter of Connerton v. Ryan, 86 A.D.3d at 700, 926 N.Y.S.2d 741 ; Matter of Boddie v. Alexander, 65 A.D.3d at 1447, 885 N.Y.S.2d 787 ). Petitioner's claim that the Board failed to properly apply the relevant statutes to his application for release presented factual issues that are reviewable on an administrative appeal (see Town of Oyster Bay v. Kirkland, 19 N.Y.3d at 1038, 954 N.Y.S.2d 769, 978 N.E.2d 1237 ; Piedra v. New York State Div. of Parole, 117 A.D.3d at 477, 985 N.Y.S.2d 238 ).
ORDERED that the judgment is affirmed, without costs.