MILLING v. BERBARY (2006)

 Petitioner commenced this CPLR article 78 proceeding to challenge the determination of the Board of Parole (Board) denying him release on parole.   Supreme Court properly dismissed the petition.   Because the Board properly considered the relevant statutory factors (see Executive Law § 259-i [2][c][A] ) and there has been no “showing of irrationality bordering on impropriety” (Matter of Russo v. New York State Bd. of Parole, 50 N.Y.2d 69, 77, 427 N.Y.S.2d 982, 405 N.E.2d 225), we perceive no basis for disturbing the determination (see Matter of Pearl v. New York State Div. of Parole, 25 A.D.3d 1058, 808 N.Y.S.2d 816;  Matter of Romer v. Dennison, 24 A.D.3d 866, 867-868, 804 N.Y.S.2d 872, lv. denied 6 N.Y.3d 706, 812 N.Y.S.2d 36, 845 N.E.2d 468). Contrary to the contention of petitioner, his receipt of an earned eligibility certificate does not preclude the Board from denying him release on parole (see Pearl, 25 A.D.3d 1058, 808 N.Y.S.2d 816;  Romer, 24 A.D.3d at 867, 804 N.Y.S.2d 872;  Matter of Fuller v. New York State Bd. of Parole, 284 A.D.2d 853, 854, 726 N.Y.S.2d 600).   The record does not support the further contention of petitioner that the Board failed to consider his individual circumstances and instead based its determination upon a policy of the Governor that all violent offenders be denied release on parole (see Matter of Lue-Shing v. Pataki, 301 A.D.2d 827, 828, 754 N.Y.S.2d 96, lv. denied 99 N.Y.2d 511, 760 N.Y.S.2d 102, 790 N.E.2d 276;  see also Matter of Huber v. Travis, 264 A.D.2d 887, 695 N.Y.S.2d 622).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: