Speed v. Regan

50 A.D.2d 1100, 377 N.Y.S.2d 343, 1975 N.Y. App. Div. LEXIS 12135

Opinion

Judgment unanimously reversed and matter remitted to Board of Parole for further proceedings in accordance with the following memorandum: Petitioner, an Attica inmate, commenced this article 78 proceeding against respondent, as chairman of the New York State Board of Parole, seeking a judgment directing the board to furnish him with reasons why his minimum period of imprisonment was established at four years. Supreme Court, Wyoming County, held that reasons must be given when the board establishes a minimum period of imprisonment and ordered that petitioner either be resentenced or released from custody. Petitioner was entitled to be given reasons why the board established his minimum period of imprisonment at four years (Matter of Festus v Regan, 50 AD2d 1084). The court was in error, however, in directing that he be resentenced or released as a consequence. The proper remedy is a judgment directing the board to give the reasons as demanded by petitioner (CPLR 7806). (Appeal from judgment of Supreme Court, Wyoming County, ordering petitioner returned to trial court for resentence and in default thereof ordering petitioner discharged.) Present— Marsh, P. J., Moule, Cardamone, Simons and Witmer, JJ.