46 A.D.2d 453, Solari v. Vincent

Citation:46 A.D.2d 453, 363 N.Y.S.2d 332
Party Name:Solari v. Vincent
Case Date:January 20, 1975
Court:New York Supreme Court Appelate Division, Second Department

Page 453

46 A.D.2d 453

363 N.Y.S.2d 332

Hector SOLARI, Respondent,

v.

Leon J. VINCENT, Superintendent of Greenhaven Correctional

Facility, Paul Regan, Chairman of New York State

Board of Parole, Appellants.

Supreme Court of New York, Second Department

January 20, 1975.

[363 N.Y.S.2d 334] Louis J. Lefkowitz, Atty. Gen., New York City (Carl Saks and Samuel A. Hirshowitz, New York City, of counsel), for appellants.

Louis A. Tirelli, Spring Valley, for respondent.

Before HOPKINS, Acting P.J., and MARTUSCELLO, LATHAM, BENJAMIN and MUNDER, JJ.

MARTUSCELLO, Justice.

This is an appeal from a judgment of the Supreme Court, Dutchess County, which, in a proceeding pursuant to article 78 of the CPLR, directed that the petitioner be afforded a new parole release hearing, with an interpreter, and that the petitioner be furnished with written reasons for the ensuing grant or denial of release on parole. The judgment should be affirmed, without costs.

Pursuant to the dictates of article 8 of the Correctional Law, the Board of Parole of the State of New York has been invested with broad discretion in the area of parole release, and it has long been recognized that, in exercising this discretion, the board's determination whether to grant or deny parole 'shall be deemed a judicial function and shall not be reviewable if done in accordance with law' (Correction Law, § 212, subd. 10; People v. Fink, 29 N.Y.2d 443, 328 N.Y.S.2d 666, 278 N.E.2d 904; Matter of Hines v. State Bd. of Parole, 293 N.Y. 254, 56 N.E.2d 572; People ex rel. Schuster v. Vincent,

Page 454

42 A.D.2d 596, 344 N.Y.S.2d 735). Thus, this court has recently held that so long as the board 'does not run afoul of statutory mandates or violate procedural due process, its determinations should remain free from judicial review' (Matter of Paulsen v. New York State Bd. of Parole, 46 A.D.2d 661, 662, 359 N.Y.S.2d 828, 831 (2d Dept., 1974); see People ex rel. McNair v. West, 77 Misc.2d 150, 152, 352 N.Y.S.2d 128, 131). Where, however, as here, the allegation is that procedural due process has been violated, it is manifest that an article 78 proceeding will lie (see Matter of Paulsen v. New York State Bd. of Parole, Supra).

Turning to the merits of the petitioner's claim, it is apparent that an inmate possesses no accrual 'right' to to parole. He does, however, possess an earned 'right' to parole release where...

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