Gaston v. Herbert

—Judgment unanimously affirmed without costs. Memorandum: Petitioner is serving concurrent indeterminate terms of incarceration of 20 years to life for his conviction in 1978 of murder in the second degree and 5 to 15 years for his conviction in 1977 for criminal possession of a controlled substance in the fifth degree. Because there was no basis for judicial intervention, Supreme Court properly denied the petition seeking to vacate the determination of the Parole Board that denied petitioner’s application for parole release (see, Executive Law § 259-i [5]; Matter of Zapata 1081 v Russi, 219 AD2d 849). The record establishes that the Parole Board considered the appropriate factors (see, Executive Law § 259-i [2] [c]; cf., Matter of King v New York State Div. of Parole, 83 NY2d 788, 791), and there is no “showing of irrationality bordering on impropriety” (Matter of Russo v New York State Bd. of Parole, 50 NY2d 69, 77; see, Matter of Zane v Travis, 231 AD2d 848, 848-849). (Appeal from Judgment of Supreme Court, Erie County, Fahey, J. — CPLR art 78.) Present — Lawton, J. P., Hayes, Wisner, Hurlbutt and Scudder, JJ.