Opinion
April 29, 1993
Appeal from the Supreme Court, Albany County (Cardona, J.).
Petitioner was originally sentenced to 5 to 15 years' imprisonment after he pleaded guilty to the crime of attempted rape in the first degree. Petitioner was released to parole supervision and his parole was subsequently revoked. Petitioner was subsequently released again on parole. Petitioner was again found to have violated his parole, and respondent revoked his parole and directed that he be held for 36 months before being reconsidered for parole. Supreme Court dismissed petitioner's application to review respondent's determination. Petitioner appeals. We affirm.
Decisions by respondent regarding parole are discretionary and are not subject to judicial review if made in accordance with the law (see, Executive Law § 259-i; Matter of McKee v New York State Div. of Parole, 157 A.D.2d 944). More particularly, in reviewing a parole revocation a court may not "move up the date of hearing for parole reconsideration in the absence of impropriety by [respondent]" (People ex rel. Grimmick v McGreevy, 141 A.D.2d 989, 990, lv denied 73 N.Y.2d 702). We find that the 36-month time limit set by respondent for reconsideration for parole release in this case was not improper given petitioner's criminal record and prior parole violation; because an alleged agreement to a shorter holding time in exchange for petitioner's guilty plea "was not placed on the record at the time of the plea, it is not entitled to judicial recognition" (People v Ramos, 63 N.Y.2d 640, 643). Further, the recommendation by the Hearing Officer who presided over the revocation hearing that petitioner be held for eight months before being reconsidered was not binding upon respondent (see, 9 NYCRR 8005.20 [c] [1]; [d]; People ex rel. Coleman v Smith, 75 A.D.2d 706, lv denied 50 N.Y.2d 804).
We also find petitioner's reliance on People ex rel. Johnson v New York State Bd. of Parole ( 180 A.D.2d 914) to be misplaced. In Johnson, this Court found that respondent's procedures allowing for automatic "Full Board Case Review" independent of the normal appeal process and without notice to the petitioner served to deny due process in that case. Central to our decision was the fact that the full board review took place before the administrative appeal process was completed and rendered that process futile (see, supra, at 916-917). By contrast, nothing in the instant case indicates that full board review took place prior to the administrative appeal or interfered with that review. We have considered petitioner's other arguments and find them to be without merit.
Weiss, P.J., Levine, Mercure, Mahoney and Casey, JJ., concur. Ordered that the judgment is affirmed, without costs.