Opinion
CA 05-00602.
September 30, 2005.
Appeal from a judgment (denominated order) of the Supreme Court, Erie County (Christopher J. Burns, J.), entered January 18, 2005 in a proceeding pursuant to CPLR article 78. The judgment granted the petition, annulled the determination denying release on parole to petitioner, and ordered a de novo parole hearing before different members of respondent.
ELIOT SPITZER, ATTORNEY GENERAL, ALBANY (FRANK BRADY OF COUNSEL), FOR RESPONDENT-APPELLANT.
EOANNOU, LANA D'AMICO, BUFFALO (JEREMY D. SCHWARTZ OF COUNSEL), FOR PETITIONER-RESPONDENT.
Before: Kehoe, J.P., Gorski, Martoche, Smith and Hayes, JJ.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously reversed on the law without costs and the petition is dismissed.
Memorandum: Supreme Court erred in granting the petition, annulling the determination denying release on parole to petitioner, and ordering a de novo parole hearing before different members of respondent ( see Matter of Simmons v. Travis, 15 AD3d 896). "The record demonstrates that [respondent] considered the relevant statutory factors ( see Executive Law § 259-i [c] [A]) before concluding that petitioner is a serious threat to community safety and welfare and thus is not an acceptable candidate for release on parole" ( Matter of Raqiyb v. Donnelly, 307 AD2d 761, 761). Further, respondent's determination does not evince "irrationality bordering on impropriety," and judicial intervention therefore is unwarranted ( Matter of Russo v. New York State Bd. of Parole, 50 NY2d 69, 77; see Matter of Silmon v. Travis, 95 NY2d 470, 476; Matter of Gaston v. Berbary, 16 AD3d 1158, 1159; Raqiyb, 307 AD2d 761).