The Matter of Eric Benson v. New York State Board of Parole

State of New York MEMORANDUM Court of Appeals This memorandum is uncorrected and subject to revision before publication in the New York Reports.

No. 63 SSM 4 In the Matter of Eric Benson, Appellant, v. New York State Board of Parole, Respondent.

Submitted by Alfred O'Connor, for appellant. Submitted by Frank Brady, for respondent.

MEMORANDUM:

The order of the Appellate Division should be affirmed, without costs.

Judicial intervention in Parole Board determinations is warranted “only when there

is a showing of irrationality bordering on impropriety” (Matter of Silmon v Travis, 95 -1-

-2- SSM No. 4 NY2d 470, 476 [2000] [internal quotation marks omitted]). Petitioner failed to make such a showing here with regard to the Parole Board’s determination to rescind his parole release.

Our decision in Matter of Costello v New York State Bd. of Parole (23 NY3d 1002 [2014]) does not compel a contrary result. Costello was decided “under the particular circumstances of [that] case,” which circumstances are distinguishable from the present case (id. at 1004).

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On review of submissions pursuant to section 500.11 of the Rules, order affirmed, without costs, in a memorandum. Chief Judge DiFiore and Judges Stein, Fahey, Garcia and Feinman concur. Judges Rivera and Wilson dissent for reasons stated in the dissenting opinion of Presiding Justice Elizabeth A. Garry at the Appellate Division (see Matter of Benson v New York State Board of Parole, 176 AD3d 1548, 1553-1555 [3rd Dept 2019] [Garry, P.J. dissenting]).

Decided June 9, 2020

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