Henry v. Dennison

40 A.D.3d 1175, 833 N.Y.S.2d 418

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 3, 2007
• Status: Published

Opinion

Appeal from a judgment of the Supreme Court (Kavanagh, J.), entered September 15, 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 was convicted in 1983 of depraved indifference murder in the second degree (see Penal Law § 125.25 [2]) and sentenced to 20 years to life in prison. In July 2005, he made his second appearance before the Board of Parole for parole release. At the conclusion of the hearing, his request was denied and he was ordered held for an additional 24 months. After the determination was affirmed on administrative appeal, petitioner commenced this CPLR article 78 proceeding challenging it. Following joinder of issue, Supreme Court dismissed the petition and this appeal ensued.

We find merit in petitioner’s argument that “the Board relied on incorrect information” in denying his request for parole release, by referring to his underlying criminal acts, which resulted in his conviction of depraved indifference murder, as intentional (see Matter of Lewis v Travis, 9 AD3d 800, 801 [2004]; see also People v Feingold, 7 NY3d 288 [2006]; People v Suarez, 6 NY3d 202 [2005]; People v Payne, 3 NY3d 266 [2004]). Accordingly, we reverse the judgment and direct that a new hearing be held.

Mercure, J.P., Spain, Rose, Lahtinen and Kane, JJ., concur. Ordered that the judgment is reversed, on the law, without costs, determination annulled and matter remitted to the Board of Parole for further proceedings not inconsistent with this Court’s decision.