Plevy v. Travis

Apr 21, 2005
Versions:17 A.D.3d 879
793 N.Y.S.2d 262
2005 N.Y. App. Div. LEXIS 4165

Appeal from a judgment of the Supreme Court (Teresi, J.), entered May 5, 2004 in Albany County, which dismissed petitioner‘s application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent Board of Parole denying petitioner‘s request for parole release.

Petitioner was convicted in 1976 of murder in the second degree in connection with the strangulation of his ex-girlfriend and was sentenced to 25 years to life in prison. In 1977, he was convicted of burglary in the third degree and was sentenced to a concurrent prison term of 3 1/2 to 7 years. Petitioner made his second appearance before respondent Board of Parole in January 2003 seeking parole release. The Board denied his request after a hearing, placing particular emphasis on the violent nature of petitioner‘s crimes as well as his criminal history, and ordered him held for an additional 24 months.* The determination was affirmed on administrative appeal, prompting petitioner to commence this CPLR article 78 proceeding. Following joinder of issue, Supreme Court dismissed the petition, resulting in this appeal.

Initially, petitioner contends that the Board improperly based its decision, in part, on a prior violation of probation which was dismissed in February 1977. Inasmuch as we agree that the determination was based on erroneous information, we are constrained to reverse the judgment and order a new hearing (see Matter of Lewis v Travis, 9 AD3d 800 [2004]). In light of our disposition, we need not consider petitioner‘s remaining claim.

Cardona, P.J., Crew III, Peters, Mugglin and Lahtinen, JJ., concur. Ordered that the judgment is reversed, on the law, without costs, determination annulled and matter remitted to the Board of Parole for further proceedings not inconsistent with this Court‘s decision.

Notes

*
* Petitioner‘s reappearance before the Board has apparently been postponed pending a decision in this appeal.