Alamo v. New York State Division of Parole

Jun 26, 2008
Versions:52 A.D.3d 1163
860 N.Y.S.2d 326

Appeal from a judgment of the Supreme Court (Zwack, J.), entered December 14, 2007 in Albany County, which dismissed petitioner‘s application, in a proceeding pursuant to CPLR article 78, to review a determination of the Board of Parole denying petitioner‘s request for parole release.

In 1987, petitioner was convicted of murder in the second degree and sentenced to 20 years to life in prison. Petitioner made his second appearance before the Board of Parole in August 2006. The Board denied his request for parole release and ordered him held for an additional 24 months. Petitioner filed an administrative appeal and then commenced this CPLR article 78 proceeding. Following joinder of issue, Supreme Court dismissed the petition. This appeal by petitioner ensued.

We affirm. Contrary to petitioner‘s assertion, the record discloses that the Board did not base its decision solely upon the nature of the underlying crime. Rather, in denying petitioner‘s request for parole release, the Board also considered other pertinent statutory factors (see Executive Law § 259-i), including petitioner‘s institutional and disciplinary record, lack of a criminal history and postrelease plans (see Matter of Montalvo v New York State Bd. of Parole, 50 AD3d 1438 [2008]). The Board was not required to give equal weight to each factor and was entitled to, as it did, place greater emphasis on the gravity of the instant offense (see Matter of Gardiner v New York State Div. of Parole, 48 AD3d 871, 872 [2008]). Petitioner‘s remaining contentions are unavailing. Given the foregoing, we find that the Board‘s decision does not exhibit “irrationality bordering on impropriety” (Matter of Silmon v Travis, 95 NY2d 470, 476 [2000], quoting Matter of Russo v New York State Bd. of Parole, 50 NY2d 69, 77 [1980]) and, as such, we decline to disturb it.

Cardona, P.J., Carpinello, Rose, Kavanagh and Stein, JJ., concur. Ordered that the judgment is affirmed, without costs.