Opinion
722 CA 18–01949
06-28-2019
In the Matter of Mauricio ESPINAL, Petitioner–Appellant, v. Anthony ANNUCCI, Acting Commissioner, New York State Department of Corrections and Community Supervision, Respondent–Respondent.
WYOMING COUNTY–ATTICA LEGAL AID BUREAU, WARSAW (LEAH R. NOWOTARSKI OF COUNSEL), FOR PETITIONER–APPELLANT. LETITIA JAMES, ATTORNEY GENERAL, ALBANY (KATE H. NEPVEU OF COUNSEL), FOR RESPONDENT–RESPONDENT.
WYOMING COUNTY–ATTICA LEGAL AID BUREAU, WARSAW (LEAH R. NOWOTARSKI OF COUNSEL), FOR PETITIONER–APPELLANT.
LETITIA JAMES, ATTORNEY GENERAL, ALBANY (KATE H. NEPVEU OF COUNSEL), FOR RESPONDENT–RESPONDENT.
PRESENT: WHALEN, P.J., PERADOTTO, CARNI, LINDLEY, AND CURRAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.
Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination of the New York State Board of Parole (Board) denying his release to parole supervision. Supreme Court properly denied the petition inasmuch as the record reflects that the Board considered the required statutory factors and adequately set forth its reasons for denying petitioner's application (see Matter of Siao–Pao v. Dennison, 11 N.Y.3d 777, 778, 866 N.Y.S.2d 602, 896 N.E.2d 87 [2008], rearg. denied 11 N.Y.3d 885, 873 N.Y.S.2d 258, 901 N.E.2d 751 [2008] ; Matter of Hamilton v. New York State Div. of Parole, 119 A.D.3d 1268, 1272–1273, 990 N.Y.S.2d 714 [3d Dept. 2014] ) and inasmuch as the Board's determination does not exhibit "irrationality bordering on impropriety" ( Matter of Kenefick v. Sticht, 139 A.D.3d 1380, 1381, 31 N.Y.S.3d 367 [4th Dept. 2016], lv denied 28 N.Y.3d 902, 40 N.Y.S.3d 350, 63 N.E.3d 70 [2016] [internal quotation marks omitted] ). Contrary to petitioner's contention, the Board took into account petitioner's deportation order; it was, however, only one of the factors under consideration in the Board's determination (see generally Matter of King v. New York State Div. of Parole, 190 A.D.2d 423, 431, 598 N.Y.S.2d 245 [1st Dept. 1993], affd 83 N.Y.2d 788, 610 N.Y.S.2d 954, 632 N.E.2d 1277 [1994] ). Petitioner's contention that the Board did not comply with Executive Law § 259–c (4) and Correction Law §§ 71–a and 112(4) was not raised in his administrative appeal, and petitioner therefore has failed to exhaust his administrative remedies with respect to that contention (see Matter of Peterson v. Stanford, 151 A.D.3d 1960, 1961, 59 N.Y.S.3d 219 [4th Dept. 2017] ; Matter of Karlin v. Cully, 104 A.D.3d 1285, 1286, 960 N.Y.S.2d 827 [4th Dept. 2013] ).