Robles v. Alexander

Appeal from a judgment of the Supreme Court, Monroe County (David M. Barry, J.), entered January 16, 2009 in a proceeding pursuant to CPLR article 78. The judgment dismissed the petition. It is hereby ordered that the judgment so appealed from is unanimously affirmed without costs. Memorandum: Supreme Court properly dismissed the petition, pursuant to which petitioner challenged the denial by the New York State Division of Parole (Board) of his request for parole release. Because the Board properly considered the relevant statutory factors (see Executive Law § 259-i [2] [c] [A]) and there has been no “showing of irrationality bordering on impropriety” (Matter of Russo v New York State Bd. of Parole, 50 NY2d 69, 77 [1980]), there is no basis for disturbing the determination of the Board (see Matter of Pearl v New York State Div. of Parole, 25 AD3d 1058 [2006]; Matter of Romer v Dennison, 24 AD3d 866, 867-868 [2005], lv denied 6 NY3d 706 [2006]). Contrary to the contention of petitioner, his challenges to the 1987 and 1994 determinations of the Board are time-barred inasmuch as the instant proceeding was not commenced within four months after those determinations became “final and binding upon the petitioner” (CPLR 217 [1]), i.e., when he [1339] became “aggrieved” by them (Matter of Yarbough v Franco, 95 NY2d 342, 346 [2000]). We have considered petitioner’s remaining contentions and conclude that they are without merit. Present—Smith, J.P., Peradotto, Carni, Pine and Gorski, JJ.