Thomas v. New York State Division of Parole

In a proceeding pursuant to CPLR article 78 to review a determination of the New York State Division of Parole, dated February 16, 1999, which, after a hearing, denied the petitioner’s request that she be released on parole, the appeal is from an order of the Supreme Court, Westchester County (Lange, J.), entered May 31, 2000, which granted the petition to the extent of annulling the determination and remitting the matter to the New York State Division of Parole for a de novo hearing.

Ordered that on the Court’s own motion, the notice of appeal is treated as an application for leave to appeal, and leave to appeal is granted (see, CPLR 5701 [c]); and it is further,

Ordered that the order is reversed, on the law, without costs or disbursements, the petition is denied, and the proceeding is dismissed on the merits.

A determination by a parole board whether or not to grant parole is discretionary, and if made in accordance with the relevant statutory factors, is not subject to judicial review absent “a showing of irrationality bordering on impropriety” (Matter of Russo v New York State Bd. of Parole, 50 NY2d 69, 77; see also, Matter of Silmon v Travis, 95 NY2d 470; Matter of Briguglio v Board of Parole, 24 NY2d 21; Matter of Heitman v New York State Bd. of Parole, 214 AD2d 673; Correction Law § 105; Executive Law § 259-i). The determination properly considered all relevant statutory factors, and there was no “showing of irrationality bordering on impropriety” (Matter of Russo v New York State Bd. of Parole, supra, at 77). O’Brien, J. P., Santucci and Smith, JJ., concur.