3 No. 103
In the Matter of Robert Carter,
Appellant,
v.
State of New York, Executive Department, Division of Parole,
Respondent.
_________________________________________________________________
2000 NY Int. 101
October 17, 2000
This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Jimmie L. Engram, for appellant.
Adam L. Aronson, for respondent.
_________________________________________________________________
KAYE, CHIEF JUDGE:
Petitioner Robert Carter is an inmate serving an aggregate sentence of
22 years to life for murder, assault and criminal possession of a
weapon. On June 20, 1994, petitioner was released on parole. Two years
later, he was re-arrested and charged with two robberies committed in
the Town of Wallkill. In a search of his apartment, the police
recovered a .38 caliber pistol. After petitioner was acquitted of the
robberies, the Division of Parole instituted proceedings against him,
alleging that he had violated the conditions of his parole by
possessing a firearm. Following a parole revocation hearing, on August
8, 1997 an Administrative Law Judge issued a recommendation that
petitioner's parole be revoked and that he be assessed a penalty of 96
months' imprisonment. Ten days later, the Division of Parole adopted
that recommendation.
Petitioner appealed to the Division's appeals unit, which affirmed
both the revocation and the penalty. A notice of the decision was
mailed to petitioner on January 2, 1998. On the decision sent to
petitioner, a handwritten note beneath the determination read, "Given
length of hold, schedule for full Parole Board review."
On January 16, petitioner's attorney sent a letter to the Board,
asking it to consider on its "full Board" review all of the arguments
raised before the appeals unit. The Board one week later issued a
decision stating that it had conducted a Delinquent Time Case Review
pursuant to 9 NYCRR 8005.21, and that petitioner's penalty was reduced
SNIPPETS:
State of New York, Executive Department, Division of Parole, Respondent.
This opinion is uncorrected and subject to revision before publication in the New York
Petitioner Robert Carter is an inmate serving an aggregate sentence of 22 years to life for
Following a parole revocation hearing, on August 8, 1997 an Administrative Law Judge issued a
On the decision sent to petitioner, a handwritten note beneath the determination read, "Given
On January 16, petitioner's attorney sent a letter to the Board, asking it to consider on its
The Board one week later issued a decision stating that it had conducted a Delinquent Time
Precisely four months later, on July 1, 1998, petitioner commenced the instant CPLR article
Specifically, respondent urged that, pursuant to Division of Parole regulations, the appeals
Supreme Court granted respondent's motion to dismiss, holding that the appeals unit decision
The Appellate Division affirmed, concluding that the administrative review process was
We granted leave, and now affirm.
A CPLR article 78 proceeding against a public "body or officer must be commenced within four
An agency determination is final -- triggering the statute of limitations -- when the
If an agency has created ambiguity or uncertainty as to whether a final and binding decision
Its timing is left to the "sole discretion" of the Board, and the Board does not "solicit or
Indeed, the parole violator is notified of the result of the review only if the full Board
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