                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 21, 2016                    521106
________________________________

In the Matter of RYDELL LEWIS,
                    Appellant,
      v
                                            MEMORANDUM AND ORDER
ANTHONY J. ANNUCCI, as Acting
   Commissioner of Corrections
   and Community Supervision,
                    Respondent.
________________________________


Calendar Date:   March 24, 2016

Before:   McCarthy, J.P., Egan Jr., Rose, Devine and Clark, JJ.

                             __________


     Rydell Lewis, Sonyea, appellant pro se.

      Eric T. Schneiderman, Attorney General, Albany (Frank Brady
of counsel), for respondent.

                             __________


Devine, J.

      Appeal from a judgment of the Supreme Court (McNamara, J.),
entered May 12, 2015 in Albany County, which dismissed
petitioner's application, in a proceeding pursuant to CPLR
article 78, to, among other things, compel respondent to re-
release petitioner to parole supervision upon the expiration of
his time assessment.

      In August 2006, petitioner was released to parole
supervision. He was subsequently declared delinquent and,
following a parole revocation hearing, his parole was revoked and
a 24-month time assessment was imposed, which was set to expire
on August 21, 2009. He was scheduled to appear before the Board
of Parole in April 2009. Prior to that appearance, he received a
                               -2-                521106

release decision notice from the Board dated March 31, 2009 that
purportedly approved his re-release to parole supervision on
September 28, 2009.1

      Despite this notice, petitioner appeared before the Board
for a parole violation reappearance interview in April 2009. At
the conclusion of the interview, the Board determined that he
should not be re-released to parole and scheduled him to reappear
in April 2011. His administrative appeal was unsuccessful.
Petitioner subsequently appeared before the Board in 2011 and
2013 and was denied parole release on both occasions.2

      Thereafter, petitioner wrote letters to various individuals
seeking to have his parole records corrected to reflect that he
should have been re-released to parole upon the expiration of his
time assessment. He then commenced this CPLR article 78
proceeding seeking the same relief and also to compel respondent
to re-release him to parole given that his time assessment had
expired. Supreme Court denied respondent's motion to dismiss the
petition but, following joinder of issue, dismissed the petition.
This appeal ensued.

      Petitioner contends that, pursuant to Executive Law § 259-i
(3) (f) (x), he should have been re-released to parole
supervision in 2009 upon the expiration of his time assessment
because he had not committed a serious disciplinary infraction
since his return to custody.3 Executive Law § 259-i (3) (f) (x),
as it existed in 2009, allowed the Board to suspend the date of a
parole violator's re-release "based on the violator's


     1
        Respondent concedes that petitioner's earliest release
date of September 28, 2009 was error and that his earliest
release date was August 21, 2009, the expiration of his time
assessment.
     2
        Petitioner also appeared at a parole interview in April
2015 at which time he was again denied release.
     3
        This is essentially what was provided for in the March
31, 2009 notice.
                                 -3-                521106

institutional record or on such other basis as is authorized by
the rules and regulations of the [B]oard" (Executive Law § 259-i
former [3] [f] [x]; see L 1989, ch 73, § 1; see also L 2011, ch
62, part C, subpart A, § 38-f-1). Notably, the pertinent
regulations provide that the Board may decline to re-release a
parole violator upon the expiration of his or her time assessment
if "the [B]oard receives any information that supports a
reasonable conclusion that the parole violator may not be
suitable for re-release" (9 NYCRR 8002.6 [c] [1] [iv]).4 In its
April 2009 decision denying petitioner parole release, the Board
took into account his refusal to participate in aggression
replacement training, as well as his admission to potentially
repeating prior violent behavior. This decision superceded the
March 31, 2009 notice that was, in any event, subsequently voided
by respondent. Inasmuch as there was no violation of Executive
Law § 259-i former (3) (f) (x), petitioner was not entitled to be
re-released upon the expiration of his time assessment (see
People ex rel. McChesney v Portuondo, 238 AD2d 636, 636 [1997]).

      Petitioner's remaining arguments are without merit.
Accordingly, the petition was properly dismissed.

         McCarthy, J.P., Egan Jr., Rose and Clark, JJ., concur.




     4
        These regulations were not amended following the 2011
amendments to Executive Law § 259-i (3) (f) (x).
                        -4-                  521106

ORDERED that the judgment is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
