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

IN RE: Roberto TORRES, Appellant, v. Tina M. STANFORD, as Chair of the Board of Parole, et al., Respondents.


Decided: June 20, 2019

Before:  Lynch, J.P., Clark, Mulvey, Aarons and Rumsey, JJ. Roberto Torres, Otisville, appellant pro se. Letitia James, Attorney General, Albany (Frederick A. Brodie of counsel), for respondents.


Appeal from a judgment of the Supreme Court (McKeighan, J.), entered July 10, 2018 in Washington County, which, in a proceeding pursuant to CPLR article 78, granted respondents' motion to dismiss the petition.

Petitioner is serving a prison term of 22 years to life following his conviction of murder in the second degree.  In April 2017, petitioner appeared before the Board of Parole, which, following a hearing, denied his request for parole release and imposed a hold of 24 months.  That determination was affirmed upon administrative appeal.  Thereafter, petitioner commenced this CPLR article 78 proceeding challenging that determination.  Supreme Court subsequently granted respondents' motion to dismiss the petition as untimely and noted that, in any event, the issues raised in the petition were unpreserved for review because they were not raised upon administrative appeal.  Petitioner appeals.

Initially, respondents concede that the petition should not have been dismissed as untimely given information provided by petitioner reflecting that the petition was timely filed in December 2017, but was returned to petitioner due to a mistake in the filing process.1  Because any error was subsequently corrected by petitioner, and given the acknowledgement by respondents that no prejudice resulted, the mistake in the filing process should have been excused and the petition deemed timely (see CPLR 2001;  see e.g. Matter of General Elec. Capital Corp. v. Loretto–Utica Residential Health Care Facility, 77 A.D.3d 1468, 1470, 909 N.Y.S.2d 274 [2010] ).  Rather than remit the matter to Supreme Court, however, we find that the record adequately allows us to determine the merits of the issues briefed by the parties, and we will do so in the interest of judicial economy (see Matter of Vaughn v. Koktowski, 91 AD3d 1002, 1003 n, 935 N.Y.S.2d 740 [2012], lv denied 19 N.Y.3d 802, 957 N.Y.S.2d 286, 980 N.E.2d 951 [2012];  Matter of Williams v. Travis, 20 A.D.3d 622, 623, 798 N.Y.S.2d 535 [2005];  Matter of Geames v. Travis, 284 A.D.2d 843, 843, 726 N.Y.S.2d 506 [2001], appeal dismissed 97 N.Y.3d 639, 735 N.Y.S.2d 495, 760 N.E.2d 1291 [2001] ).

To that end, we note, and respondents do not dispute, that the claim asserted by petitioner is preserved as it could not have been raised upon administrative appeal.  Specifically, petitioner challenges the fact that the administrative appeals unit relied upon inaccurate information regarding his criminal history in affirming the Board's denial of parole.  A review of the statement by the appeals unit inaccurately reported that petitioner murdered six, as opposed to four, people.  “Because of the likelihood that such error may have affected” the decision to affirm the Board's denial of petitioner's request for parole release, proper administrative review is required (Matter of Brazill v. New York State Bd. of Parole, 76 A.D.2d 864, 864, 428 N.Y.S.2d 505 [1980];  see Matter of Clark v. New York State Bd. of Parole, 166 A.D.3d 531, 531–532, 89 N.Y.S.3d 134 [2018];  Matter of Williams v. Travis, 20 A.D.3d at 623, 798 N.Y.S.2d 535;  compare Matter of Rossney v. New York State Bd. of Parole, 267 A.D.2d 648, 649, 699 N.Y.S.2d 319 [1999], lv denied 94 N.Y.2d 759, 705 N.Y.S.2d 6, 726 N.E.2d 483 [2000] ).  As such, the judgment is reversed.  Petitioner's request for further relief is without merit.

ORDERED that the judgment is reversed, on the law, without costs, motion denied and matter remitted to the Board of Parole for further proceedings not inconsistent with this Court's decision.


1.   It appears from the record that the filing mistake consisted of petitioner's failure to purchase an index number and request judicial intervention.

Aarons, J.

Lynch, J.P., Clark, Mulvey and Rumsey, JJ., concur.

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