Opinion
March 27, 1958
Petitioner appeals from an order of the Supreme Court entered in Albany County, which dismissed his application under article 78 of the Civil Practice Act for an order directing respondent to reinstate him to parole. While serving an indeterminate sentence of from 30 years to life imprisonment for murder in the second degree, petitioner was paroled on June 11, 1950. On September 2, 1955, petitioner was arrested by New York City police, charged with violating section 1751 of the Penal Law, dealing with narcotics. He was declared delinquent as of that date. He was subsequently indicted, tried and acquitted. A member of the Parole Board determined that petitioner had violated his parole and he was returned to prison on June 5, 1956. On July 24, 1956, petitioner was given a hearing on a charge of parole violation, pursuant to section 218 Correct. of the Correction Law, and was ordered "held for two years for reconsideration only." Petitioner contends that, because of his acquittal, the action of the board was arbitrary and capricious. At all times while petitioner was on parole he was in constructive custody, subject to be retaken and returned to actual custody. ( People ex rel. Natoli v. Lewis, 287 N.Y. 478.) After a hearing at which his entire record was reviewed, the action of the board in finding a violation may not be said to be arbitrary or capricious. The Parole Board is given broad power of discretion in retaking a prisoner and in determining the question of parole violation. (Correction Law, §§ 216, 218.) In the absence of a showing of a violation of a statutory duty, the action of the board is not subject to review. ( Matter of Hines v. State Board of Parole, 293 N.Y. 254; Matter of O'Connor v. State Board of Parole, 270 App. Div. 93.) Order affirmed. Foster, P.J., Bergan, Coon and Gibson, JJ., concur.