Opinion
September 27 1996.
Judgment unanimously reversed on the law without costs and petition dismissed.
Before: Present — Green, J.P., Lawton, Doerr, Balio and Boehm, JJ.
On September 3, 1986, petitioner was sentenced to an indeterminate term of incarceration of 81/3 to 25 years for his conviction upon his guilty plea of manslaughter in the first degree and arson in the third degree. The charges arose after petitioner, who was intoxicated, intentionally set fire to his father's carpet business. While volunteer firefighters were fighting the fire, a canopy collapsed, resulting in the death of one firefighter and the crippling of another.
On October 11, 1994, after serving his minimum sentence, petitioner appeared for the first time before the New York State Parole Board (Board). Parole was denied and the denial was upheld on administrative appeal. Petitioner commenced this CPLR article 78 proceeding seeking to annul the Board's determination. Supreme Court granted the petition and ordered the Board to hold a new parole hearing within 60 days. We reverse.
If the Board complies with the procedures set forth in Executive Law § 259-i, its discretionary determinations are not subject to review unless there has been a showing of "irrationality bordering on impropriety" ( Matter of Russo v New York State Bd. of Parole, 50 NY2d 69, 77; see also, Executive Law § 259-i). Moreover, "[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 McLain v New York State Div. of Parole, 204 AD2d 456). Here, petitioner failed to make the required showing that the Board failed to consider the relevant statutory factors set forth in Executive Law § 259-i (2) (c) ( cf., Matter of King v New York State Div. of Parole, 83 NY2d 788, 791). (Appeal from Judgment of Supreme Court, Erie County, Sconiers, J. — CPLR art 78.)