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Hernandez v. Alexander

State of New York Supreme Court, Appellate Division Third Judicial Department


July 2, 2009

IN THE MATTER OF OBED HERNANDEZ, APPELLANT,
v.
GEORGE ALEXANDER, AS CHAIR OF THE NEW YORK STATE DIVISION OF PAROLE, RESPONDENT.

The opinion of the court was delivered by: McCarthy, J.

MEMORANDUM AND ORDER

Calendar Date: May 26, 2009

Before: Cardona, P.J., Rose, Kane, McCarthy and Garry, JJ.

Appeal from a judgment of the Supreme Court (Feldstein, J.), entered June 19, 2008 in St. Lawrence County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of the Board of Parole, among other things, denying petitioner's request for parole release.

In 2005, petitioner was convicted of one count of attempted criminal possession of a controlled substance in the third degree and was sentenced to a prison term of 3 to 6 years. In March 2006, the Board of Parole granted him early conditional parole release for deportation only (see Executive Law § 259-i [2] [d]).

The Board subsequently learned that petitioner faced federal prosecution for having illegally reentered the United States (see 8 USC § 1326 [b]), and he ultimately pleaded guilty to one count of that offense and was sentenced to a prison term of 57 months that ran concurrently with his state prison term. At a merit parole hearing in November 2006, the Board allegedly notified petitioner that his early conditional parole had been rescinded and proceeded to deny his request for merit parole. Following an administrative appeal, he commenced this CPLR article 78 proceeding. Supreme Court dismissed the application, prompting this appeal.

We affirm. Petitioner's arguments deal with the Board's alleged rescission of his early conditional parole, but he did not raise these issues on his administrative appeal. As such, they are unpreserved for our review (see Matter of Cruz v Travis, 273 AD2d 648, 649 [2000]; Matter of Moore v New York State Bd. of Parole, 233 AD2d 653 [1996]).

Cardona, P.J., Rose, Kane and Garry, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

20090702

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