Gaston v. Herbert

Appellate Division of the Supreme Court of New York

Gaston v. Herbert

262 A.D.2d 1080, 691 N.Y.S.2d 819, 1999 N.Y. App. Div. LEXIS 7346

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 18, 1999

StatusPublished

Cited by2 cases

This text of 262 A.D.2d 1080 (Gaston v. Herbert) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gaston v. Herbert, 262 A.D.2d 1080, 691 N.Y.S.2d 819, 1999 N.Y. App. Div. LEXIS 7346 (N.Y. Ct. App. 1999).

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Opinion

—Judgment unanimously affirmed without costs. Memorandum: Petitioner is serving concurrent indeterminate terms of incarceration of 20 years to life for his conviction in 1978 of murder in the second degree and 5 to 15 years for his conviction in 1977 for criminal possession of a controlled substance in the fifth degree. Because there was no basis for judicial intervention, Supreme Court properly denied the petition seeking to vacate the determination of the Parole Board that denied petitioner’s application for parole release (see, Executive Law § 259-i [5]; Matter of Zapata [1081]*1081v Russi, 219 AD2d 849). The record establishes that the Parole Board considered the appropriate factors (see, Executive Law § 259-i [2] [c]; cf., Matter of King v New York State Div. of Parole, 83 NY2d 788, 791), and there is no “showing of irrationality bordering on impropriety” (Matter of Russo v New York State Bd. of Parole, 50 NY2d 69, 77; see, Matter of Zane v Travis, 231 AD2d 848, 848-849). (Appeal from Judgment of Supreme Court, Erie County, Fahey, J. — CPLR art 78.) Present — Lawton, J. P., Hayes, Wisner, Hurlbutt and Scudder, JJ.

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—Judgment unanimously affirmed without costs. Memorandum: Petitioner is serving concurrent indeterminate terms of incarceration of 20 years to life for his conviction in 1978 of murder in the second degree and 5 to 15 years for his conviction in 1977 for criminal possession of a controlled substance in the fifth degree. Because there was no basis for judicial intervention, Supreme Court properly denied the petition seeking to vacate the determination of the Parole Board that denied petitioner’s application for parole release (see, Executive Law § 259-i [5]; Matter of Zapata [1081]*1081v Russi, 219 AD2d 849). The record establishes that the Parole Board considered the appropriate factors (see, Executive Law § 259-i [2] [c]; cf., Matter of King v New York State Div. of Parole, 83 NY2d 788, 791), and there is no “showing of irrationality bordering on impropriety” (Matter of Russo v New York State Bd. of Parole, 50 NY2d 69, 77; see, Matter of Zane v Travis, 231 AD2d 848, 848-849). (Appeal from Judgment of Supreme Court, Erie County, Fahey, J. — CPLR art 78.) Present — Lawton, J. P., Hayes, Wisner, Hurlbutt and Scudder, JJ.

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Bluebook (online)

262 A.D.2d 1080, 691 N.Y.S.2d 819, 1999 N.Y. App. Div. LEXIS 7346, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gaston-v-herbert-nyappdiv-1999.

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