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.

__________

Warren Foster, Moravia, appellant pro se.

Eric T. Schneiderman, Attorney General, Albany (Frank Brady

of counsel), for respondent.

__________

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
-2- 520441 

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