| Matter of Comfort v New York State Bd. of Parole |
| 2012 NY Slip Op 08864 [101 AD3d 1450] |
| December 20, 2012 |
| Appellate Division, Third Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| In the Matter of Larry J. Comfort, Appellant, v New York State Board of Parole et al., Respondents. |
—[*1]
Eric T. Schneiderman, Attorney General, Albany (Frank Brady of counsel), for
respondents.
Malone Jr., J.
Appeal from a judgment of the Supreme Court (Breslin, J.), entered May 9, 2012 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent Board of Parole denying petitioner's request for parole release.
Petitioner is currently serving an aggregate prison term of 20 years to life as a result of his 1982 convictions for criminal sale of a controlled substance in the first degree and criminal possession of a controlled substance in the first degree, as well as a consecutive sentence of 1½ to 3 years stemming from his subsequent conviction of attempted escape in the first degree. In June 2011, petitioner made his most recent appearance before respondent Board of Parole, whereupon his request for parole was again denied and the Board ordered him held for an additional 18 months. After petitioner did not receive a timely response to his August 2011 administrative appeal, he commenced this CPLR article 78 proceeding challenging the Board's [*2]determination. Supreme Court dismissed the petition and this appeal ensued.[FN1]
The Board's decision whether to grant discretionary release is "deemed a judicial function and shall not be reviewable if done in accordance with the law" (Executive Law § 259-i [5]). "Judicial intervention is warranted only when there is a showing of irrationality bordering on impropriety" (Matter of Silmon v Travis, 95 NY2d 470, 476 [2000] [internal quotation marks and citation omitted]). Here, the record reveals that the Board, in making its decision, considered the appropriate statutory factors in denying petitioner's parole request (see Executive Law § 259-i [2] [c]), including the seriousness of petitioner's crimes, positive educational and program achievements while incarcerated, his exemplary prison disciplinary record and plans after release. However, the Board also specifically noted that it considered the "significant opposition to [petitioner's] release." Apparently, this opposition was in the form of letters that were submitted in response to a solicitation made by the State Troopers Police Benevolent Society, which incorrectly claimed that petitioner was criminally liable for his brother's shooting of a police officer. Given this misrepresentation regarding petitioner's convictions, and it appearing that the "significant" letters in opposition to petitioner's release were prompted by the erroneous characterization of petitioner's conviction, it was error for the Board to credit those tainted letters.[FN2] Accordingly, in view of the fact that the Board placed particular emphasis on these letters in denying petitioner's release on parole, the judgment must be reversed and a new hearing granted (see e.g. Matter of Lewis v Travis, 9 AD3d 800, 801 [2004]).
Mercure, J.P., Spain, Stein and McCarthy, JJ., concur. Ordered that the judgment is reversed, on the law, without costs, determination annulled and matter remitted to respondent Board of Parole for further proceedings not inconsistent with this Court's decision.