State of New York                                            MEMORANDUM
Court of Appeals                                        This memorandum is uncorrected and subject to
                                                      revision before publication in the New York Reports.




 No. 63 SSM 4
 In the Matter of Eric Benson,
         Appellant,
      v.
 New York State Board of Parole,
         Respondent.




 Submitted by Alfred O'Connor, for appellant.
 Submitted by Frank Brady, 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
                                          -1-
                                           -2-                                  SSM No. 4

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).

*    *      *     *    *    *     *    *    *    *     *    *    *     *    *      *   *

On review of submissions pursuant to section 500.11 of the Rules, order affirmed, without
costs, in a memorandum. Chief Judge DiFiore and Judges Stein, Fahey, Garcia and
Feinman concur. Judges Rivera and Wilson dissent for reasons stated in the dissenting
opinion of Presiding Justice Elizabeth A. Garry at the Appellate Division (see Matter of
Benson v New York State Board of Parole, 176 AD3d 1548, 1553-1555 [3rd Dept 2019]
[Garry, P.J. dissenting]).


Decided June 9, 2020




                                           -2-
