Smith v. Travis

Sep 17, 1998
Versions:253 A.D.2d 955
678 N.Y.S.2d 917
1998 N.Y. App. Div. LEXIS 9495

Appeal from a judgment of the Supreme Court (Bradley, J.), entered November 13, 1997 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of the Board of Parole revoking petitioner’s parole.

Petitioner was released on parole from a sentence imposed following his conviction of the crime of manslaughter in the first degree. Thereafter, petitioner’s parole was revoked based upon his plea of guilty of failing to report to his parole officer and he was reincarcerated without further consideration for parole for 36 months. Supreme Court dismissed petitioner’s challenge to his parole revocation, prompting this appeal.

Decisions by the Board of Parole constitute discretionary acts and are not subject to review if made in accordance with the law (see, Executive Law § 259-i [5]; Matter of Gray v Travis, 239 AD2d 631). Notwithstanding the fact that this was petitioner’s first parole violation since being released 41 months earlier, we reject his contention that the 36-month hold was excessive. Furthermore, the Board appropriately considered the nature and circumstances of the instant offense in assess*956ing the time for his reincarceration (see generally, Matter of Cruz v New York State Dept. of Parole, 212 AD2d 699). Petitioner’s assertion that the Board improperly relied on a prior youthful offender adjudication is not supported by the record. Petitioner’s remaining contentions have been found to be without merit.

Cardona, P. J., Mercure, Crew III, Spain and Graffeo, JJ., concur. Ordered that the judgment is affirmed, without costs.