| Matter of Galbreith v New York State Bd. of Parole |
| 2009 NY Slip Op 00382 [58 AD3d 731] |
| January 20, 2009 |
| Appellate Division, Second Department |
| In the Matter of Larry Galbreith, Respondent, v New YorkState Board of Parole, Appellant. |
—[*1] Larry Galbreith, Warwick, N.Y., respondent pro se.
In a proceeding pursuant to CPLR article 78 to review a determination of the New YorkState Board of Parole dated June 19, 2007, denying the petitioner's application to be released toparole, the appeal is from a judgment of the Supreme Court, Orange County (Alessandro, J.),dated May 29, 2008, which granted the petition, annulled the determination, and remitted thematter to the New York State Division of Parole for a new hearing.
Ordered that the judgment is reversed, on the law, without costs or disbursements, thepetition is denied, the determination is confirmed, and the proceeding is dismissed on the merits.
A parole determination may be set aside only where the parole board's determination to denyan early release evinced "irrationality bordering on impropriety" (Matter of Russo v NewYork State Bd. of Parole, 50 NY2d 69, 77 [1980]; see Matter of Silmon v Travis, 95NY2d 470, 476 [2000]; cf. Matter of LuPo-Yen v Dennison, 28 AD3d 770, 771 [2006]). The burden is on the petitioner to makea convincing demonstration of entitlement to such relief (see Matter of McLain v New YorkState Div. of Parole, 204 AD2d 456 [1994]). The petitioner failed to satisfy that burden here.
The Supreme Court determined that the New York State Board of Parole (hereinafter theBoard) erred by not considering the sentencing minutes because those minutes contained arecommendation [*2]by the sentencing court (seeExecutive Law § 259-i [1] [a]; Matter of Edwards v Travis, 304 AD2d 576[2003]). Examination of those minutes, however, reveals that the sentencing court made norecommendation. Under the circumstances here, the Board's failure to consider the sentencingminutes did not prejudice the petitioner (see Matter of Schettino v New York State Div. of Parole, 45 AD3d1086, 1087 [2007]).
Review of the hearing transcript and the Board's written decision reveals that the Boardconsidered the proper factors and adequately set forth its reasons for denying the petitioner'sapplication for release (see Matter ofSiao-Pao v Dennison, 11 NY3d 777, 778 [2008]). Consequently, the Board'sdetermination does not exhibit "irrationality bordering on impropriety" (Matter of Russo vNew York State Bd. of Parole, 50 NY2d at 77). Spolzino, J.P., Fisher, Miller and Carni, JJ.,concur.