Tomarkin v. Bombard
| Decision Date | 16 March 1977 |
| Parties | In the Matter of Robert TOMARKIN, Respondent, v. Roy BOMBARD, Superintendent, Green Haven Correctional Facility, et al., Appellants. In the Matter of Robert TOMARKIN, Respondent, v. Lt. TANNER et al., Appellants. The PEOPLE, etc., ex rel. Bruce HOFSTETTER, on behalf of Robert Tomarkin, Respondent, v. SUPERINTENDENT, GREEN HAVEN CORRECTIONAL FACILITY, et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Louis J. Lefkowitz, Atty. Gen., New York City (Robert S. Hammer and Samuel A. Hirshowitz, New York City, of counsel), for appellants.
Kenneth E. Demario, Joel Gorham, Eric Neisser and Pierce Gerety, Jr., New York City (Bruce Hofstetter, Poughkeepsie, of counsel), for respondent.
Before MARGETT, Acting P.J., and SHAPIRO, TITONE and O'CONNOR, JJ.
MEMORANDUM BY THE COURT.
Appeals from two judgments of the Supreme Court, Dutchess County, (1) one dated February 18, 1977, which, in consolidated proceedings pursuant to CPLR article 78, directed petitioner's immediate release on parole in the interest of justice and (2) one dated March 4, 1977, which, in a habeas corpus proceeding, again directed petitioner's release from custody under the supervision of the State Board of Parole in the interest of justice.
Judgments reversed, on the law, without costs or disbursements, proceedings dismissed on the merits, and petitioner is remanded to the custody of the Superintendent of the Green Haven Correctional Facility.
In our opinion, Special Term improperly directed petitioner's release on parole. It is settled beyond peradventure that 'so long as the Board (of Parole) violates no positive statutory requirement, its discretion is absolute and beyond review in the courts' (Matter of Hines v. State Bd. of Parole, 293 N.Y. 254, 257, 56 N.E.2d 572, 573; see, also, Matter of Briguglio v. New York State Bd. of Parole, 24 N.Y.2d 21, 298 N.Y.S.2d 704, 246 N.E.2d 512; Solari v. Vincent, 46 A.D.2d 453, 363 N.Y.S.2d 332).
The Legislature has expressly set forth the criteria which the Board of Parole must employ in making its decision (Correction Law, §§ 212--214). Only when the board violates the criteria set forth in these provisions, may its decision be reviewed (Correction Law, § 212, subd. 10).
In the instant case, the decision of the board denying petitioner his release on parole finds adequate support in the record. Thus, petitioner has been cited numerous times for violating...
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...beyond review in the courts." (Matter of Hines v. State Board of Parole, 293 N.Y. 254, 257, 56 N.E.2d 572, 573; Matter of Tomarkin v. Bombard, 56 A.D.2d 881, 392 N.Y.S.2d 478; Solari v. Vincent, 46 A.D.2d 453, 363 N.Y.S.2d 332; People ex rel. West v. Vincent, 46 A.D.2d 782, 783, 360 N.Y.S.2......
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