| Matter of Benson v New York State Bd. of Parole |
| 2020 NY Slip Op 03207 [35 NY3d 1007] |
| June 9, 2020 |
| Court of Appeals |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected through Wednesday, July 29, 2020 |
| In the Matter of Eric Benson, Appellant, v New York State Board of Parole, Respondent. |
Decided June 9, 2020
Matter of Benson v New York State Bd. of Parole, 176 AD3d 1548, affirmed.
Brooklyn Defender Services, Brooklyn (Alfred O'Connor of counsel), for appellant.
Letitia James, Attorney General, New York City (Frank Brady, Barbara D. Underwood and Andrea Oser of counsel), 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 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).
Chief Judge DiFiore and Judges Stein, Fahey, Garcia and Feinman concur; Judges Rivera and Wilson dissent for [*2]reasons stated in the dissenting opinion of Presiding Justice Elizabeth A. Garry at the Appellate Division (see Matter of Benson v New York State Bd. of Parole, 176 AD3d 1548, 1553-1555 [3d Dept 2019, Garry, P.J., dissenting]).{**35 NY3d at 1009}
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, without costs, in a memorandum.