Opinion
October 31, 1977
In a proceeding pursuant to CPLR article 78 to review a determination of the New York State Board of Parole, which denied petitioner his release on parole, the appeal is from a judgment of the Supreme Court, Dutchess County, dated August 24, 1976, which denied the application and dismissed the proceeding. Judgment affirmed, without costs or disbursements. It is directed that petitioner be given a psychiatric evaluation, as soon as possible, and be granted a parole hearing at which the board shall consider the said evaluation, unless such event has already occurred. Petitioner-appellant was sentenced to consecutive indeterminate sentences of 25 and 15 years, respectively, and to two indeterminate sentences of up to five years, each to be served concurrently with the consecutive terms, upon his convictions of manslaughter in the first degree, attempted robbery in the first degree, attempted grand larceny in the second degree and attempted possession of a dangerous weapon. He was denied parole mainly because of the seriousness of the crimes and because of his emotional instability. As required by statute (Correction Law, § 214, subd 6), the Board of Parole gave its rationale for the denial of parole. In Matter of Tomarkin v Bombard ( 56 A.D.2d 881) this court stated: "The Legislature has expressly set forth the criteria which the Board of Parole must employ in making its decision (Correction Law, §§ 212-214). Only when the board violates the criteria set forth in these provisions, may its decision be reviewed (Correction Law, § 212, subd 10)." In the instant proceeding, the decision of the board denying petitioner his release on parole finds adequate support in the record. The decision was neither arbitrary nor capricious, and did not deprive petitioner of his due process rights. Petitioner's other arguments have been considered and have been found to lack merit. However, we note from the record petitioner's claim that he has not been afforded an opportunity to obtain a psychiatric evaluation. It is therefore directed that petitioner be so evaluated and granted, as soon as possible, a parole hearing to consider said evaluation, unless such event has already taken place. Shapiro, J.P., Titone, Suozzi and O'Connor, JJ., concur.