IN RE: Julian PHILLIPS

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Supreme Court, Appellate Division, Third Department, New York.

IN RE: Julian PHILLIPS, Appellant, v. Brion TRAVIS, as Chairman, New York State Board of Parole, Respondent.

Decided: June 24, 1999

Before:  MIKOLL, J.P., MERCURE, YESAWICH JR., SPAIN and CARPINELLO, JJ. Julian Phillips, Beacon, appellant in person. Eliot Spitzer, Attorney-General (Wayne L. Benjamin of counsel), Albany, for respondent.

Appeal from a judgment of the Supreme Court (Teresi, J.), entered September 9, 1998 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent denying petitioner's request for parole release.

Petitioner is a prison inmate currently serving two concurrent 5 to 15-year prison sentences following his conviction of the crimes of assault in the first degree and criminal possession of a weapon in the second degree.   Both convictions stem from petitioner's shooting of an off-duty police officer.   The State Board of Parole denied petitioner's application for parole release based, inter alia, upon the gravity of the convictions and petitioner's continued violent conduct and poor disciplinary record during his incarceration.   This decision was administratively affirmed, and Supreme Court dismissed petitioner's subsequent challenge to the Parole Board's determination, prompting this appeal.

 We affirm.   Because the record discloses that the Parole Board considered all relevant factors in denying petitioner's parole request, the Parole Board's determination is not subject to further judicial review (see, Executive Law § 259-i[5];  see also, Matter of Anthony v. New York State Div. of Parole, 252 A.D.2d 704, 679 N.Y.S.2d 158, lv. denied 92 N.Y.2d 812, 680 N.Y.S.2d 905, 703 N.E.2d 763, cert. denied 525 U.S. 1183, 119 S.Ct. 1125, 143 L.Ed.2d 119).   Petitioner's receipt of a certificate of earned eligibility did not entitle him to release on parole as the Parole Board specifically concluded that petitioner could not remain at liberty without violating the law and that his release at this time would not be compatible with the welfare of society (see, Correction Law § 805;  Matter of Nieves v. New York State Div. of Parole, 251 A.D.2d 836, 675 N.Y.S.2d 158).  Accordingly, the Parole Board's finding was made in accordance with the law and we perceive no basis upon which to conclude that it abused its discretion.   We have examined petitioner's remaining arguments, including his claim that the Parole Board improperly reviewed the information contained in his presentence report, and find them to be without merit.

ORDERED that the judgment is affirmed, without costs.

MEMORANDUM DECISION.

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