Shapard v. Zon

1099 Appeal from a judgment (denominated order) of the Supreme Court, Erie County (Christopher J. Burns, J.), entered September 22, 2005 in a proceeding pursuant to CPLR article 78. The judgment dismissed the petition. It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Petitioner appeals from a judgment dismissing his petition pursuant to CPLR article 78 in which he sought to annul the determination of the Parole Board denying his release to parole supervision. Petitioner contends that the determination of the Parole Board is arbitrary and capricious, irrational, and in violation of lawful procedure because the Parole Board did not exercise its discretion with respect to petitioner and instead is denying parole requests from all prisoners pursuant to a policy implemented by the Governor. Petitioner failed to raise that contention in his administrative appeal and thus has failed to exhaust his administrative remedies with respect to that contention (see generally Matter of Rodriguez v Coughlin, 219 AD2d 876 [1995]; Matter of Nelson v Coughlin, 188 AD2d 1071 [1992], appeal dismissed 81 NY2d 834 [1993]). In any event, petitioner’s contention is without merit (see Matter of Lue-Shing v Pataki, 301 AD2d 827, 828 [2003], lv denied 99 NY2d 511 [2003]). “The record demonstrates that the Parole Board considered the relevant statutory factors, including petitioner’s record in prison and postrelease plans, before concluding in its discretion that, due to the serious and violent nature of the crime and petitioner’s other violent conduct, petitioner is not an acceptable candidate for release on parole” (Matter of Thurman v Hodges, 292 AD2d 872, 873 [2002], lv denied 98 NY2d 604 [2002]). We have considered petitioner’s remaining contention and conclude that it is without merit. Present—Hurlbutt, J.P, Gorski, Martoche, Smith and Hayes, JJ.