Opinion
CA 02-02506
July 3, 2003.
Appeal from a judgment of Supreme Court, Erie County (Howe, J.), entered September 30, 2002, which dismissed the CPLR article 78 petition.
HASAN RAQIYB, PETITIONER-APPELLANT PRO SE.
ELIOT SPITZER, ATTORNEY GENERAL, ALBANY (ROBERT M. GOLDFARB OF COUNSEL), FOR RESPONDENTS-RESPONDENTS.
PRESENT: WISNER, J.P., HURLBUTT, BURNS, LAWTON, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum:
Contrary to the contention of petitioner, Supreme Court properly dismissed his CPLR article 78 petition seeking to annul the determination denying him release on parole. The record demonstrates that the Parole Board 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. Where, as here, "the Parole Board considered the appropriate factors * * * and there is no `showing of irrationality bordering on impropriety' * * *, there is no basis for judicial intervention" ( Matter of Thurman v Hodges, 292 A.D.2d 872, 873, lv denied 98 N.Y.2d 604, quoting Matter of Russo v. New York State Bd. of Parole, 50 N.Y.2d 69, 77; see Matter of Gaston v. Herbert, 262 A.D.2d 1080). We reject petitioner's further contention that Executive Law 259-i is an illegal ex post facto law ( see Matter of Charlemagne v. State of New York Div. of Parole, 281 A.D.2d 669, 670; People ex rel. Casey v. Demsky, 242 A.D.2d 759, 760, lv denied 91 N.Y.2d 806; Matter of Rentz v. Herbert, 206 A.D.2d 944, 945, lv denied 84 N.Y.2d 810). We also reject petitioner's contention that 9 NYCRR 8002.2(b) suffers from a similar constitutional infirmity ( see generally Dobbert v. Florida, 432 U.S. 282, 293, reh denied 434 U.S. 882; People v. McQuilken, 249 A.D.2d 35, 35-36, lv denied 92 N.Y.2d 901).