The opinion
State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: September 24, 2015 520441
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In the Matter of WARREN
FOSTER,
Appellant,
v MEMORANDUM AND ORDER
NEW YORK STATE PAROLE BOARD,
Respondent.
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Calendar Date: August 10, 2015
Before: Lahtinen, J.P., Garry, Devine and Clark, JJ.
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Warren Foster, Moravia, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany (Frank Brady
of counsel), for respondent.
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Appeal from a judgment of the Supreme Court (McCarthy, J.),
entered December 12, 2014 in Albany County, which, in a
proceeding pursuant to CPLR article 78, granted respondent's
motion to dismiss the petition.
Petitioner is currently serving a prison term of 16 years
to life as a result of his conviction of robbery in the second
degree (People v Foster, 300 AD2d 131 [2002], lv denied 99 NY2d
628 [2003]). He reappeared before the Board of Parole in May
2014 and, following a hearing, the Board denied his application
for discretionary parole release and ordered him held for an
additional 24 months. Petitioner filed a notice of appeal to the
Board's appeals unit but subsequently withdrew it. Thereafter
petitioner commenced this CPLR article 78 proceeding challenging
the Board's determination denying parole. Supreme Court granted
respondent's motion to dismiss based upon petitioner's failure to
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exhaust administrative remedies, prompting this appeal.
We affirm. Under established law, "one who objects to the
act of an administrative agency must exhaust available
administrative remedies before being permitted to litigate in a
court of law" (Town of Oyster Bay v Kirkland, 19 NY3d 1035, 1038
[2012], cert denied ___ US ___, 133 S Ct 1502 [2013] [internal
quotation marks and citation omitted]; see Matter of Adams v
Evans, 92 AD3d 1056, 1057 [2012]; Matter of Connerton v Ryan, 86
AD3d 698, 699 [2011]; see also Executive Law § 259-i [4]; 9 NYCRR
8006.1 et seq.). Supreme Court correctly found that petitioner's
withdrawal of his administrative appeal and consequent failure to
perfect his appeal and exhaust his administrative remedies
preclude judicial review of respondent's determination (see
Piedra v New York State Div. of Parole, 117 AD3d 477, 477 [2014];
Matter of Adams v Evans, 92 AD3d at 1057 [2012]; Matter of Boddie
v Alexander, 65 AD3d 1446, 1447 [2009], appeal dismissed 13 NY3d
886 [2009]). Petitioner's mere assertion of constitutional
claims does not relieve him of the obligation to first exhaust
administrative remedies that could provide the requested relief
(see Town of Oyster Bay v Kirkland, 19 NY3d at 1038; accord
Matter of Schulz v State of New York, 86 NY2d 225, 232 [1995];
Matter of Connerton v Ryan, 86 AD3d at 700; Matter of Boddie v
Alexander, 65 AD3d at 1447). Petitioner's claim that the Board
failed to properly apply the relevant statutes to his application
for release presented factual issues that are reviewable on an
administrative appeal (see Town of Oyster Bay v Kirkland, 19 NY3d
at 1038; Piedra v New York State Div. of Parole, 117 AD3d at
477).
Lahtinen, J.P., Garry, Devine and Clark, JJ., concur.
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ORDERED that the judgment is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court