Carter v. Dennison

42 A.D.3d 779, 838 N.Y.S.2d 794

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 19, 2007
• Status: Published

Opinion

Appeal from a judgment of the Supreme Court (Lynch, J.), entered October 16, 2006 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of the Board of Parole denying petitioner’s request for parole release.

Petitioner, who is currently serving 15 years to life in prison upon his 1989 conviction of murder in the second degree, commenced this CPLR article 78 proceeding challenging an October 2005 determination of the Board of Parole denying his request for parole release. Respondent has conceded that the sentencing minutes containing the recommendations of the sentencing judge, if any, were not considered by the Board at the time that it rendered its determination. Inasmuch as the Board is required to consider such information in making parole release determinations (see Matter of Lovell v New York State Div. of Parole, 40 AD3d 1166, 1167 [2007]; Matter of Standley v New York State Div. of Parole, 34 AD3d 1169, 1170 [2006]), we agree with respondent that the matter must be remitted for a de novo hearing.

Crew III, J.P, Peters, Spain, Rose and Kane, JJ., concur. Ordered that the judgment is reversed, on the law, without costs, and matter remitted to the Board of Parole which is directed to obtain petitioner’s sentencing minutes and the recommendations of the sentencing court within 30 days of this Court’s decision and to conduct a de novo hearing within 45 days of the date thereof.