Kelly v. Hagler

• Decision Date: 19 April 2012
• Citation: 942 N.Y.S.2d 290,94 A.D.3d 1301,2012 N.Y. Slip Op. 02917
• Parties: In the Matter of Courtney KELLY, Appellant, v. Commissioner HAGLER, as a Member of the Parole Board, Respondent.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 02917
94 A.D.3d 1301
942 N.Y.S.2d 290

In the Matter of Courtney KELLY, Appellant,
v.
Commissioner HAGLER, as a Member of the Parole Board, Respondent.

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

April 19, 2012.

[942 N.Y.S.2d 291]

Courtney Kelly, Comstock, appellant pro se.

Eric T. Schneiderman, Attorney General, Albany (Allyson B. Levine of counsel), for respondent.

Before: PETERS, P.J., SPAIN, KAVANAGH, STEIN and GARRY, JJ.

[94 A.D.3d 1301] Appeal from a judgment of the Supreme Court (Devine, J.), entered June 16, 2011 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of the Board of Parole denying petitioner's request for parole release supervision.

Petitioner was convicted of, among other crimes, murder in the second degree and was sentenced to a prison term of 20 years to life. Following his third appearance before the Board of Parole, his request for parole release was denied. After he exhausted his administrative remedies, petitioner commenced this CPLR article 78 proceeding. Supreme Court dismissed the petition and this appeal ensued.

Parole release decisions are “deemed a judicial function and shall not be reviewable if done in accordance with law” (Executive Law 259–i[5] ). Here, the parole hearing transcript reveals that the Board considered the relevant statutory factors, including petitioner's institutional record, academic achievements, the deportation order issued against him, petitioner's release and [94 A.D.3d 1302] employment plans and the seriousness of the offense ( see Executive Law § 259–i[2][c][A] ). We are unpersuaded by petitioner's contention that, given the deportation order, it was irrational to conclude that his release would be incompatible with the welfare and safety of the community. 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 ( see e.g. Matter of Silvero v. Dennison, 28 A.D.3d 859, 811 N.Y.S.2d 822 [2006]; Matter of Hunter v. New York State Div. of Parole, 21 A.D.3d 1178, 1179, 800 N.Y.S.2d 799 [2005] ). Inasmuch as the Board's decision does not exhibit “irrationality bordering on impropriety” ( Matter of Silmon v. Travis, 95 N.Y.2d 470, 476, 718 N.Y.S.2d 704, 741 N.E.2d 501 [2000] [internal quotation marks and citation omitted] ), it will not be disturbed.

ORDERED that the judgment is affirmed,...