Macon v. New York State Board of Parole

176 A.D.2d 880, 575 N.Y.S.2d 350, 1991 N.Y. App. Div. LEXIS 13386

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 21, 1991
• Status: Published

Opinion

— In a proceeding pursuant to CPLR article 78 to review a determination of the New York State Board of Parole, dated October 1990 which, after a parole release hearing, denied the petitioner release on parole, and to compel the New York State Board of Parole to release the petitioner, the appeal is from an order of the Supreme Court, Westchester County (Rosato, J.), entered May 8, 1991, which granted the petitioner’s motion for reargument, in effect, vacated a judgment of the same court entered January 21, 1991, annulled the determination, and directed his release on parole.

Ordered that the order is reversed, on the law, without costs or disbursements, the motion is denied, the judgment is reinstated, and the proceeding is dismissed.

It is well settled that the New York State Board of Parole’s release decisions are discretionary, and if made in accordance with statutory requirements, its decisions are not subject to judicial review (see, People ex rel. DiCostanzo v Hernandez, 137 AD2d 861; Matter of Samperi v Rodriquez, 126 AD2d 653; Matter of Davis v New York State Div. of Parole, 114 AD2d 412).

The reasons stated for denying parole release to the petitioner, particularly that the petitioner’s release continues to be incompatible with the welfare of the community, satisfied statutory requirements (Executive Law § 259-i [2] [c]; People ex rel. DiCostanzo v Hernandez, supra). Accordingly, the Supreme Court should not have disturbed the determination. Thompson, J. P., Kunzeman, Miller and Copertino, JJ., concur.