Atkins v. New York State Board

Dec 6, 2001
Versions:289 A.D.2d 667
733 N.Y.S.2d 648
2001 N.Y. App. Div. LEXIS 11647

Appeal from a judgment of the Supreme Court (Malone, Jr., *668J.), entered February 27, 2001 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent Board of Parole denying petitioner’s request for parole release.

Petitioner has been in prison since 1988 serving an aggregate sentence of SVs to 25 years after having been convicted of attempted murder in the second degree, assault in the first degree and resisting arrest. Petitioner’s applications for parole release were previously denied in 1996 and 1998. In April 2000, petitioner again appeared before respondent Board of Parole for a parole release interview and was denied release. Supreme Court dismissed the CPLR article 78 proceeding to review that determination and we affirm.

The record reveals that although the Board placed emphasis on the seriousness of the crimes and petitioner’s lack of insight therein, it appropriately considered the relevant statutory factors, including petitioner’s positive accomplishments in prison and postrelease plans (see, Matter of Felder v Travis, 278 AD2d 570). Petitioner’s assertion that the presentence investigation report considered by the Board contains erroneous information is unsupported by the record and, in any event, there is no indication that the Board’s determination was affected by an error of fact (see, Matter of Cardona v New York State Bd. of Parole, 284 AD2d 843; Matter of Wood v New York State Bd. of Parole, 283 AD2d 702). Inasmuch as petitioner has failed to demonstrate that the Board’s determination was affected by “a ‘showing of irrationality bordering on impropriety’ ” (Matter of Silmon v Travis, 95 NY2d 470, 476, quoting Matter of Russo v New York State Bd. of Parole, 50 NY2d 69, 77), we perceive no basis upon which to disturb the Board’s discretionary determination that petitioner was not an acceptable candidate for parole release. Petitioner’s remaining arguments have been examined and found to be unpersuasive.

Cardona, P. J., Peters, Spain, Mugglin and Rose, JJ., concur. Ordered that the judgment is affirmed, without costs.