Putland v. Herbert

231 A.D.2d 893, 648 N.Y.S.2d 401, 1996 N.Y. App. Div. LEXIS 10737

Opinion

Judgment unanimously reversed on the law without costs and petition dismissed. Memorandum: Supreme Court erred in granting the petition. The decision to deny parole may be based upon the seriousness of the crime and its violent nature (see, Matter of Weir v New York State Div. of Parole, 205 AD2d 906, 907) and, "[i]n the absence of a convincing demonstration to the contrary, it is presumed that the New York State Division of Parole acted properly in accordance with statutory requirements” (Matter of McClain v New York State Div. of Parole, 204 AD2d 456). Petitioner failed to establish that the Parole Board did not consider the enumerated factors in Executive Law § 259-i (1) (a) and (2) (c). We conclude on this record that the Parole Board acted in accordance with the statutory criteria and that its discretionary release decision therefore is not subject to judicial review (see, Executive Law § 259-i [5]; Matter of McClain v New York State Div. of Parole, supra, at 457). (Appeal from Judgment of Supreme Court, Erie County, Flaherty, J.—CPLR art 78.) Present—Denman, P. J., Lawton, Fallon, Doerr and Balio, JJ.