| Matter of Sutherland v Alexander |
| 2009 NY Slip Op 05899 [64 AD3d 1028] |
| July 16, 2009 |
| Appellate Division, Third Department |
| In the Matter of Patrick Sutherland, Appellant, v George B.Alexander, as Chair of the New York State Division of Parole,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), forrespondent.
Appeal from a judgment of the Supreme Court (Ceresia, Jr., J.), entered December 10, 2008in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLRarticle 78, to review a determination of the Board of Parole denying petitioner's request forparole release.
Petitioner is currently serving 12½ to 25 years in prison upon his conviction ofnumerous crimes. In August 2007, he made his first appearance before the Board of Paroleseeking parole release. The Board denied his request and ordered him held for an additional 24months. Petitioner filed an administrative appeal and, when he did not receive a response withinfour months, he commenced this CPLR article 78 proceeding. Following joinder of issue,Supreme Court dismissed the petition and this appeal ensued.
Petitioner's primary contention is that the Board relied upon erroneous information regardinghis criminal history in denying his request for parole release. Specifically, he claims that theBoard incorrectly referenced in its decision that he shot an individual in the arm when, in fact, allcharges with respect to that individual were dismissed prior to trial. The record discloses thatsuch information came from the presentence investigation report and when asked by the Board,petitioner did not refute the description of the incident. Notably, however, the presentenceinvestigation report did not indicate that the charges relating to this individual had [*2]been dismissed and petitioner never sought to have the reportcorrected. Given that petitioner did not timely challenge the information contained in thepresentence investigation report before the sentencing court, he is precluded from asserting thatthe Board was not entitled to rely upon the information contained therein (see Matter of Champion v Dennison,40 AD3d 1181, 1182 [2007], lv dismissed 9 NY3d 913 [2007]; Matter of Cox v New York State Div. ofParole, 11 AD3d 766, 768 [2004], lv denied 4 NY3d 703 [2005]). Uponreviewing the record, we find that the Board considered the relevant statutory factors underExecutive Law § 259-i (seeMatter of Grigger v Goord, 41 AD3d 1128, 1129 [2007], lv dismissed 9 NY3d985 [2007]) and that its decision is not affected by " 'irrationality bordering on impropriety' "(Matter of Silmon v Travis, 95 NY2d 470, 476 [2000], quoting Matter of Russo vNew York State Bd. of Parole, 50 NY2d 69, 77 [1980]). Therefore, we find no reason todisturb its decision.
Cardona, P.J., Mercure, Rose, Lahtinen and Kavanagh, JJ., concur. Ordered that thejudgment is affirmed, without costs. [See 2008 NY Slip Op 33304(U).]