Marino v. Travis

289 A.D.2d 493, 735 N.Y.S.2d 422, 2001 N.Y. App. Div. LEXIS 12907

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 24, 2001
• Status: Published

Opinion

In a proceeding pursuant to CPLR article 78 to review a determination of Brion Travis, Chairman of the New York State Division of Parole, dated January 6, 2000, which, after a hearing, denied the petitioner’s application to be released to parole, the appeal is from (1) a judgment of the Supreme Court, Queens County (Posner, J.), dated May 8, 2001, and (2) an amended judgment of the same court, dated June 19, 2001, which, inter alia, annulled the determination.

Ordered that the appeal from the judgment is dismissed, without costs or disbursements, as it was superseded by the amended judgment; and it is further,

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

The Supreme Court properly annulled the determination of the New York State Division of Parole. The Parole Board’s finding that there was a reasonable probability that, if released, the petitioner would not remain at liberty without violating the law is without support in the record and, therefore, is irrational and bordering on impropriety (see, Matter of Russo v New York State Bd. of Parole, 50 NY2d 69; cf., Matter of Thomas v New York State Div. of Parole, 286 AD2d 393). Gold-stein, J. P., Florio, McGinity and H. Miller, JJ., concur.