BODDIE v. N.Y. STATE DIV. OF PAROLE

Mercure, J.P.

Petitioner contends that the Board of Parole erred by failing to postpone his parole hearing in order to await a corrected version of his presentence report. Supreme Court properly dismissed the petition because, at the time petitioner commenced this proceeding, he had not yet exhausted his administrative remedies (see, Matter of Howard v. Travis, 268 A.D.2d 832). The fact that he may have since perfected his administrative appeal does not absolve him of that requirement or validate the petition nunc pro tunc (see, Matter of Whitehead v. Russi, 201 A.D.2d 825). In any event, were we to reach the merits, we would uphold the determination denying petitioner's request for parole. Nothing in the Board's decision indicates that in reaching its determination, the Board relied on the information that was later deleted from the presentence report (see, Richburg v. New York State Bd. of Parole, 284 A.D.2d 685, appeal dismissed, lv denied 97 N.Y.2d 636). Rather, the Board was persuaded by the heinous nature of petitioner's offenses and the fact that a weapon was involved.

Crew III, Peters, Spain and Lahtinen, JJ., concur.

ORDERED that the judgment is affirmed, without costs.