Opinion
No. 63 SSM 4
06-09-2020
In the Matter of Eric BENSON, Appellant, v. NEW YORK STATE BOARD OF PAROLE, Respondent.
Brooklyn Defender Services, Brooklyn (Alfred O'Connor of counsel), for appellant. Letitia James, Attorney General, New York City (Frank Brady, Barbara D. Underwood and Andrea Oser of counsel), for respondent.
Brooklyn Defender Services, Brooklyn (Alfred O'Connor of counsel), for appellant.
Letitia James, Attorney General, New York City (Frank Brady, Barbara D. Underwood and Andrea Oser of counsel), for respondent.
OPINION OF THE COURT
MEMORANDUM. The order of the Appellate Division should be affirmed, without costs.
Judicial intervention in Parole Board determinations is warranted "only when there is a showing of irrationality bordering on impropriety" ( Matter of Silmon v. Travis, 95 N.Y.2d 470, 476, 718 N.Y.S.2d 704, 741 N.E.2d 501 [2000] [internal quotation marks omitted] ). Petitioner failed to
make such a showing here with regard to the Parole Board's determination to rescind his parole release.
Our decision in Matter of Costello v. New York State Bd. of Parole , 23 N.Y.3d 1002, 994 N.Y.S.2d 39, 18 N.E.3d 739 (2014) does not compel a contrary result. Costello was decided "under the particular circumstances of [that] case," which circumstances are distinguishable from the present case ( id. at 1004, 994 N.Y.S.2d 39, 18 N.E.3d 739 ).
Chief Judge DiFiore and Judges Stein, Fahey, Garcia and Feinman concur. Judges Rivera and Wilson dissent for reasons stated in the dissenting opinion of Presiding Justice Elizabeth A. Garry at the Appellate Division (see Matter of Benson v. New York State Board of Parole, 176 A.D.3d 1548, 1553–1555, 113 N.Y.S.3d 318 [3rd Dept. 2019] [ Garry, P.J. dissenting] ). On review of submissions pursuant to section 500.11 of the Rules, order affirmed, without costs, in a memorandum.