Opinion
409
March 15, 2002.
Appeal from a judgment (denominated order) of Supreme Court, Erie County (Flaherty, J.), entered January 9, 2001, which granted the petition and annulled the determination denying petitioner release on parole.
Eliot Spitzer, Attorney General, Albany (Edward Lindner of counsel), for respondents-appellants.
Emerson Thurman, petitioner-respondent pro se.
PRESENT: WISNER, J.P., SCUDDER, KEHOE, BURNS, AND GORSKI, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously reversed on the law without costs and the petition is denied.
Memorandum:
Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination denying him release on parole. Supreme Court erred in granting the petition. The record demonstrates that the Parole Board considered the relevant statutory factors, including petitioner's record in prison and postrelease plans, before concluding in its discretion that, due to the serious and violent nature of the crime and petitioner's other violent conduct, petitioner is not an acceptable candidate for release on parole ( see, Matter of Martinez v. Travis, 289 A.D.2d 823 [decided Dec. 20, 2001]; Matter of Collado v. New York State Div. of Parole, 287 A.D.2d 921). Because the Parole Board considered the appropriate factors ( see, Executive Law § 259-i [c] [A]) and there is no "showing of irrationality bordering on impropriety" ( Matter of Russo v. New York State Bd. of Parole, 50 N.Y.2d 69, 77), there is no basis for judicial intervention ( see, Matter of Silmon v. Travis, 95 N.Y.2d 470, 476-477; Matter of Gaston v. Herbert, 262 A.D.2d 1080; Matter of Zane v. Travis, 231 A.D.2d 848).