156 A.D.2d 779 | N.Y. App. Div. | 1989
Appeal from a judgment of the Supreme Court (Williams, J.), entered August 25, 1988 in Sullivan County, which, in a proceeding pursuant to CPLR article 78, granted respondents’ motion to dismiss the petition.
In October 1986, petitioner was sentenced to an indetermi
In December 1987, the Commissioner denied petitioner a CEE and thereafter petitioner was denied parole. In its decision, however, the Parole Board determined that petitioner, if paroled, "would not live and remain at liberty without violating the law” and that petitioner’s "release at this time is incompatible with the welfare of society”. Petitioner then attempted to appeal the denial of a CEE through the inmate grievance program and requested that an appeals mechanism be implemented to review CEE denials. On June 8, 1988, the Central Office Review Committee denied the appeal as unreviewable under the inmate grievance program pursuant to Correction Law § 805. Petitioner then commenced this CPLR article 78 proceeding challenging the denial of a CEE. Supreme Court dismissed the petition upon a motion by respondents and this appeal followed.
We affirm, although on different grounds than those relied
In our view, given the purely discretionary nature of petitioner obtaining a CEE, the denial of same amounts to no more than an interlocutory determination which may be considered by the Parole Board in determining petitioner’s parole (see, Correction Law § 805). Accordingly, the petition should have been dismissed on the ground that it seeks review of a nonfinal determination.
Judgment affirmed, without costs. Kane, J. P., Mikoll, Yesawich, Jr., Mercure and Harvey, JJ., concur.