Opinion
No. 588 CA 23-01650
09-27-2024
IN THE MATTER OF WILLIAM SHRUBSALL, PETITIONER-APPELLANT, v. ANTHONY ANNUCCI, ACTING COMMISSIONER, NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, RESPONDENT-RESPONDENT.
WYOMING COUNTY-ATTICA LEGAL AID BUREAU, WARSAW (LEAH R. NOWOTARSKI OF COUNSEL), FOR PETITIONER-APPELLANT. LETITIA JAMES, ATTORNEY GENERAL, ALBANY (SARAH L. ROSENBLUTH OF COUNSEL), FOR RESPONDENT-RESPONDENT.
WYOMING COUNTY-ATTICA LEGAL AID BUREAU, WARSAW (LEAH R. NOWOTARSKI OF COUNSEL), FOR PETITIONER-APPELLANT.
LETITIA JAMES, ATTORNEY GENERAL, ALBANY (SARAH L. ROSENBLUTH OF COUNSEL), FOR RESPONDENT-RESPONDENT.
PRESENT: SMITH, J.P., CURRAN, MONTOUR, NOWAK, AND DELCONTE, JJ.
Appeal from a judgment of the Supreme Court, Wyoming County (Michael M. Mohun, A.J.), entered September 12, 2023, in a proceeding pursuant to CPLR article 78. The judgment dismissed the amended petition.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.
Memorandum: Petitioner appeals from a judgment dismissing his CPLR article 78 amended petition seeking to annul the determination of the Board of Parole (Board) denying his request for release to parole supervision. We affirm.
Petitioner contends that the Board failed to measure his rehabilitation under current legislative mandates because it did not use a risk and needs assessment instrument tailored to his programming. Petitioner failed to preserve that contention for our review inasmuch as he did not raise it in his administrative appeal or in the amended petition (see Matter of Krupa v Stanford, 145 A.D.3d 1656, 1656 [4th Dept 2016]). Petitioner further contends that the illegibility of the signatures of the Board members who decided his administrative appeal renders it impossible to determine whether the Board violated Executive Law § 259-i (4) (a), which prohibits Board members who participated in the parole determination from participating in the administrative appeal. Petitioner similarly failed to preserve that contention for our review inasmuch as he did not raise it in his amended petition (see Matter of Ruggiero v Coombe, 219 A.D.2d 844, 844 [4th Dept 1995]; see also Matter of Allen v Evans, 82 A.D.3d 1427, 1428 [3d Dept 2011]). We have no discretionary authority to review petitioner's unpreserved contentions in this CPLR article 78 proceeding (see Matter of Khan v New York State Dept. of Health, 96 N.Y.2d 879, 880 [2001]; Krupa, 145 A.D.3d at 1656).
Finally, to the extent that petitioner contends otherwise, we conclude upon our review of the record that the Board properly considered the requisite factors and adequately set forth its reasons to deny petitioner's application for release and "that there was no showing of irrationality bordering on impropriety" (Krupa, 145 A.D.3d at 1656-1657 [internal quotation marks omitted]; see Matter of Milling v Berbary, 31 A.D.3d 1202, 1203 [4th Dept 2006], lv denied 7 N.Y.3d 808 [2006], rearg denied 7 N.Y.3d 922 [2006]).