Borrell v. N.Y. State Div. of Parole

• Decision Date: 04 December 2014
• Court: New York Supreme Court — Appellate Division
• Parties: In the Matter of Julio C. BORRELL, Appellant, v. NEW YORK STATE DIVISION OF PAROLE, Respondent.

?123 A.D.3d 1206
998 N.Y.S.2d 513
2014 N.Y. Slip Op. 08535

In the Matter of Julio C. BORRELL, Appellant,
v.
NEW YORK STATE DIVISION OF PAROLE, Respondent.

Supreme Court, Appellate Division, Third Department, New York.

Dec. 4, 2014

Affirmed.

[998 N.Y.S.2d 514]

Julio C. Borrell, Dannemora, appellant pro se.

Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Treasure of counsel), for respondent.

Before: LAHTINEN, J.P., STEIN, McCARTHY, LYNCH and CLARK, JJ.

Appeal from a judgment of the Supreme Court (Ellis, J.), entered February 28, 2014 in Clinton County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to direct the Board of Parole to issue a determination regarding his request for parole release.

Petitioner was convicted as a second violent felony offender of multiple crimes and was sentenced to 12 1/2 to 25 years in prison. In January 2012, he made his second appearance before the Board of Parole seeking to be released to parole supervision. Following a hearing, his request was denied and he was ordered held for an additional 24 months. In October 2013, petitioner commenced this CPLR article 78 proceeding seeking a writ of mandamus compelling the Board to issue a specific determination as to whether an order of deportation issued against him warrants granting him parole release pursuant to Executive Law § 259–i(d). In November 2013, petitioner reappeared before the Board and was again denied parole release. Thereafter, Supreme Court dismissed the petition, and this appeal ensued.¹

Petitioner seeks relief in the nature of mandamus compelling the Board to issue a determination whether the order of deportation issued against him warrants his release to parole. Contrary to petitioner's contention, however, “[a] deportation order is only one factor to consider in determining parole release and the existence of such order does not require an inmate's release” ( Matter of Kelly v. Hagler, 94 A.D.3d 1301, 1302, 942 N.Y.S.2d 290 [2012] ).² Rather, the decision of the Board to deny parole release is discretionary, based upon its evaluation of several statutory guidelines, including the existence of deportation orders ( see Executive Law § 259–i[2][c][A][iv]; [d]; Matter of Hamilton v. New York State Div. of Parole, 119 A.D.3d 1268, 1270, 990 N.Y.S.2d 714 [2014] ). Inasmuch as “[t]he writ of mandamus is an extraordinary remedy that lies only to compel the performance of acts that are mandatory, not discretionary, and only...