People ex rel. Henson v. Miller

—Appeal from a judgment of the Supreme Court (Ledina, J.), entered December 5, 1996 in Sullivan County, which converted petitioner’s application for a writ of habeas corpus, in a [730] proceeding pursuant to CPLR article 70, to a proceeding pursuant to CPLR article 78 and dismissed the petition seeking review of a determination of the State Board of Parole denying petitioner’s request for release on parole. Petitioner appeared before the State Board of Parole for the first time in 1996 and was denied parole based on the seriousness of his crimes (murder, attempted murder and robbery in the first degree), his extensive criminal history which demonstrated a propensity for extreme violence and antisocial behavior, and his prison disciplinary record. We affirm Supreme Court’s judgment dismissing petitioner’s application for judicial review of this determination. Because the Board’s reasons for denying parole are supported by the record and satisfy the requirements of Executive Law § 259-i, we decline to disturb its determination. We also find no error in the Board’s application of current parole criteria under Executive Law § 259-i rather than the criteria found under the former statutes which were in effect at the time of petitioner’s conviction (see, People ex rel. Gilmore v New York State Parole Bd., 241 AD2d 793, 793-794; Matter of Ristau v Hammock, 103 AD2d 944, lv denied 63 NY2d 608). In any event, we note that petitioner was not disadvantaged thereby; the Board’s reliance on the seriousness of petitioner’s crimes would have been a sufficient basis upon which to deny parole even under the former statutes (see, Matter of Ristau v Hammock, supra). Petitioner’s remaining contentions have been examined and found to be without merit. Mikoll, J. P., Crew III, White, Peters and Spain, JJ., concur. Ordered that the judgment is affirmed, without costs.