IN RE: LUCIANO SPATARO (2016)

MEMORANDUM AND ORDER

Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by an order of the Supreme Court, Erie County [Shirley Troutman, J.], filed June 16, 2015) to review a determination of the New York State Board of Parole.  The determination rescinded petitioner's parole release date.

It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.

Memorandum:  Petitioner, an inmate serving an aggregate sentence of 25 years to life for various convictions including murder in the second degree (People v. Spataro, 202 A.D.2d 1005, lv denied 84 N.Y.2d 833), commenced this CPLR article 78 proceeding seeking to annul the determination of the New York State Board of Parole (Board) that, after a hearing, rescinded a prior determination granting him an open release date.  We confirm.

A parole board may, “[i]n its discretion, ․ revoke or modify any of its decisions or determinations” (9 NYCRR 8000.4), and a parole release date may be rescinded when, among other things, there is “significant information which existed ․ prior to the rendition of the parole release decision, where such information was not known by the board” (9 NYCRR 8002.5[b][2][i];  see Matter of Ortiz v New York State Bd. of Parole, 239 A.D.2d 52, 55, lv denied 92 N.Y.2d 811).  In rescinding an inmate's parole release date, a majority of the board must be “satisfied that substantial evidence was presented at the hearing to form a basis for rescinding the grant of release” (9 NYCRR 8002.5[d][1];  see Ortiz, 239 A.D.2d at 55).

Contrary to petitioner's contention, we conclude that the decision of the Court of Appeals in Matter of Costello v New York State Bd. of Parole (23 NY3d 1002, 1004, revg 101 AD3d 1512) does not require annulment of the Board's rescission determination here.  In Costello, the Court held that the Board improperly rescinded the petitioner's parole release “under the particular circumstances of this case,” and emphasized that its resolution in Costello “should not be interpreted as minimizing ․ the importance of victim impact statements in parole board hearings” (23 NY3d at 1004).

Frances E. Cafarell

Clerk of the Court