Evans v. Dennison

58 A.D.3d 998, 869 N.Y.S.2d 922

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 15, 2009
• Status: Published

Opinion

Appeal from a judgment of the Supreme Court (Feldstein, J.), entered June 6, 2008 in Franklin County, as amended by a judgment entered June 16, 2008 in Franklin County, which partially granted petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of the Board of Parole denying his request for parole release.

In 1983, petitioner was convicted of manslaughter in the first degree, criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree. He was sentenced, respectively, to prison terms of SVs to 25 years, 5 to 15 years and 21/z to 7 years, with the first and third sentences ordered to run consecutive to each other and concurrent with the second sentence. In January 2007, petitioner appeared before the Board of Parole and was denied release to parole supervision. He thereafter exhausted his administrative remedies and commenced this CPLR article 78 proceeding seeking to annul the Board’s determination. Following joinder of issue, Supreme Court found that the Board failed to consider petitioner’s sentencing minutes and granted the petition to the extent of annulling the determination and directing that the Board conduct a de novo hearing. Petitioner now appeals.

We affirm. Inasmuch as Supreme Court annulled the Board’s determination denying petitioner parole release and granted him a de novo hearing, petitioner has received all of the relief to which he is entitled (see Matter of Oberoi v Dennison, 55 AD3d 1033 [2008]). To the extent that petitioner requests future review of the Board’s determination following the de novo hearing, that is not a proper subject of this proceeding.

Cardona, P.J., Her cure, Peters, Spain and Lahtinen, JJ., concur. Ordered that the judgment is affirmed, without costs.