Heitman v. New York State Board of Parole

214 A.D.2d 673, 625 N.Y.S.2d 264, 1995 N.Y. App. Div. LEXIS 4259

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 17, 1995
• Status: Published

Opinion

In a proceeding pursuant to CPLR article 78 to review a determination of the New York State Board of Parole, dated January 19, 1993, which, after a hearing, denied the petitioner’s request to be released on parole, the appeal is from a judgment of the Supreme Court, Westchester County (Scarpino, J.), dated December 7, 1993, which denied the petition and dismissed the proceeding.

Ordered that the judgment is affirmed, without costs or disbursements.

The Supreme Court properly dismissed the petition because the discretionary decision of the New York State Board of Parole (hereinafter the Board) denying parole release to the petitioner, when made in accordance with the law, is not subject to judicial review (see, Executive Law § 259-i [5]; Matter of Hall v New York State Executive Dept., 188 AD2d 791; Matter of Rock v New York State Bd. of Parole, 124 AD2d 804). The petitioner’s contention that the Board failed to overcome the presumption in favor of his release based upon the issuance of a certificate of earned eligibility is meritless in light of the fact that the Board specifically found that there was a reasonable probability that the petitioner, if released, will not remain at liberty without violating the law, and that his release would not be compatible with the welfare of society (see, Matter of Salcedo v Ross, 183 AD2d 771). Balletta, J. P„ Thompson, Santucci, Altman and Hart, JJ., concur.