Matter of McRobbie v Martuscello
2026 NY Slip Op 03536
June 5, 2026
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This decision is uncorrected and subject to revision before publication in the Official Reports.
IN THE MATTER OF MICHAEL L. MCROBBIE, PETITIONER-APPELLANT,
v
DANIEL MARTUSCELLO, III, ACTING COMMISSIONER, NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, RESPONDENT-RESPONDENT.
Supreme Court of the State of New York, Appellate Division, Fourth Judicial Department
Decided on June 5, 2026
261 CA 25-00520
Present: Montour, J.P., Ogden, Greenwood, Nowak, And Hannah, JJ.
WYOMING COUNTY-ATTICA LEGAL AID BUREAU, WARSAW (NORMAN P. EFFMAN OF COUNSEL), FOR PETITIONER-APPELLANT.
LETITIA JAMES, ATTORNEY GENERAL, ALBANY (FRANK BRADY OF COUNSEL), FOR RESPONDENT-RESPONDENT.
Appeal from a judgment of the Supreme Court, Wyoming County (Donald G. O'Geen, A.J.), entered March 3, 2025, in a proceeding pursuant to CPLR article 78. The judgment dismissed the petition.
[*1]It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.
Memorandum: Petitioner appeals from a judgment dismissing his CPLR article 78 petition seeking to annul the determination of the Board of Parole (Board) revoking his release to parole supervision. We affirm.
Petitioner contends that Supreme Court improperly considered the Board's determination and the Board of Parole Appeals Unit's findings and decision, and that he was denied a statutory right under Executive Law § 259-i (4-a) (a) to appeal to County Court in lieu of an administrative appeal. Petitioner failed to preserve those contentions for our review inasmuch as he did not raise them in his administrative appeal or in the petition (see Matter of Shrubsall v Annucci, 230 AD3d 1556, 1556 [4th Dept 2024]; Krupa v Stanford, 145 AD3d 1656, 1656 [4th Dept 2016]). We have no discretionary authority to review petitioner's unpreserved contentions in this CPLR article 78 proceeding (see Matter of Khan v New York State Dept. of Health, 96 NY2d 879, 880 [2001]).
Entered: June 5, 2026
Ann Dillon Flynn
Clerk of the Court