(dissenting). I dissent. Actions of the parole board are subject to some, though limited, measure of judicial scrutiny (Correction Law, § 212, subd. 10), the theory that such actions are completely beyond the ken of judicial review as “ acts of grace ” from a benign sovereign having been laid to rest (see Morrissey v. Brewer, 408 U. S. 471, 481-482 [1972]; People ex rel. Menechino v. Warden, 27 N Y 2d 376, 384). The appellants contend that so long as the board violates no positive statutory requirement, its discretion is absolute and beyond review in the courts (citing Matter of Hines v. State Board of Parole, 293 N. Y. 254, 257). However, it is clear that compliance with statutory requirements does not end judicial inquiry where a constitutional challenge is advanced (United States ex rel. Harrison v. Pace, 357 F. Supp. 354, 356 [E. D. Pa., 1973]). The board’s action involved herein is reviewable to determine whether it satisfies due process requirements (see Matter of Cummings v. Regan, 76 Misc 2d 137; Matter of Cummings v. Regan, 76 Misc 2d 357).
It is now settled law that parole revocation proceedings are subject to due process requirements of the State and Federal *348Constitutions (Morrissey v. Brewer, supra; People ex rel. Menechino v. Warden, supra); it is also the law in New York that parole release proceedings are not (Matter of Briguglio v. New York State Bd. of Parole, 24 N Y 2d 21, 26; Menechino v. Oswald, 430 F. 2d 403 [2d Cir., 1970], cert. den. 400 U. S. 1023). The instant ease involves elements of both under its unusual factual pattern. Petitioner appeared before a three-member parole board panel which unanimously decided to grant him parole and set an “ open date ” of December 14, 1972 for his release. The effect of this action was to grant petitioner his release without further action on the part of the parole board except to approve of his work and living arrangements in society. Before his actual release, the full 10-member board reversed that decision (7 NYCRB 1.8), informing the prisoner that it “ was felt by the parole board that it would be a negative community reaction to your release ”. In response to an ensuing inquiry from petitioner to Commissioner Oswald, Board Chairman Began informed him, by letter, that the rescission of his parole was based “ on new facts of a confidential nature -which were uncovered and had to be considered by the Board.”
On a similar set of facts, the California Supreme Court in Matter of Prewitt (8 Cal. 3d 470) held that the rescission of an unexecuted grant of parole was tantamount to a revocation of parole, requiring all the due process rights mandated by Morrissey v. Brewer (supra). This court need not decide whether all the due process rights enumerated in Morrissey apply here; the only issue before us is whether a prisoner in such a situation is entitled to a statement of ultimate reasons for the loss of his limited but valuable right to be free.1 He is entitled to' such a statement,2 both as a matter of due process of law under the State and Federal Constitutions (see cases cited in n. 2) and because it is essential to the proper exercise of our function of judicial review of parole board actions such as this. Here, “ the rudiments of procedural due process are
*349not observed unless the administrative body details the reasons for its findings.” (United States ex rel. Harrison v. Pace, supra, p. 356, citing Goldberg v. Kelly, 397 U. S. 254 [1970] ; Matter of Gault, 387 U. S. 1 [1967]; Davis, Administrative Law, § 16.12, p. 585 [1970 Supp.].) Clearly, decisions based on race, religion or sex alone, to cite obvious examples, would not be “ done in accordance with law ” (Correction Law, § 212, subd. .10; cf. United States ex rel. Johnson v. Chairman, New York State Bd. of Parole, 363 F. Supp. 416, 417-418). Similarly, other irrelevant and illegal considerations may occasionally and inadvertently enter into board decisions. If secrecy as to ultimate reason is permitted, effective judicial review, which is our duty, would be impossible (United States ex rel. Johnson v. Chairman, New York State Bd. of Parole, supra; United States ex rel. Harrison v. Pace, supra, p. 357; Matter of Cummings v. Regan, 76 Misc 2d 137).
The instant case is an example of how impermissible considerations might possibly enter into parole board deliberations and improperly affect their decisions. By seating its ‘ ‘ reason ’ ’ for rescinding petitioner’s parole the board has indicated that the “negative community reaction” was deemed controlling. If such a consideration, in and of itself, can properly enter parole board deliberations, let alone control the exercise of their discretion, few prisoners would ever be paroled as it can reasonably be assumed that communities rarely welcome offenders into their midst. Parole is not to be granted solely on the basis of community approval; rather; the board must consider whether there is a reasonable probability, that, if released, the prisoner will live and remain at liberty without violating the law, and that his release is not incompatible with the welfare of society (Correction Law, § 213). A negative community reaction is not synonymous with incompatibility with the welfare of society. Neither is the mere statement of it as a reason for rescission of1 an unexecuted grant of parole sufficient to meet due process requirements.
In order to comply with the rudimentary requirements of due process, the statement of reasons must recite the ultimate fact which led ¡to rescission of parole “ with sufficient particularity to enable the prisoner to understand how he is expected to regulate his conduct and to enable a reviewing court to determine whether inadmissible factors have influenced the decision, and to determine whether discretion has been abused ” (United States ex rel. Johnson v. Chairman, New York Bd. of Parole, supra, p. 419).
*350Accordingly, the matter should he remitted for further proceedings not inconsistent, herewith.
Herlihy, P. J., Kane and Main, JJ., concur with Greenblott, J.; Cooke, J., dissents and votes to remit in an opinion.
Judgment reversed, on the law and the facts, and petition dismissed, without costs.
. No attempt is made herein to determine whether or not petitioner should be released on parole.
. Although it is unnecessary to decide and no decision is made herein as to whether a prisoner in a ■“ normal ” proceeding is entitled to a similar statement of reasons in the event parole is denied, it is noteworthy that several courts have answered that question in the affirmative (see, e.g., Matter of Cummings v. Regan, 76 Misc 2d 137; Matter of Cummings v. Regan, 76 Misc 2d 357; United States ex rel. Johnson v. Chairman, New York State Bd. of Parole, 363 F. Supp. 416 [E.D.N.Y. 1973]; United States ex rel. Harrison v. Pace, 357 F. Supp. 354 [E.D. Pa., 1973]; Childs v. United States Board of Parole [D.D.C., Sept. 30, 1973, Bryant, J.]; Monks v. New Jersey State Parole Bd., 58 N. J 238).