Carter v. Dennison

Jun 30, 2005
Versions:19 A.D.3d 974
797 N.Y.S.2d 193
2005 N.Y. App. Div. LEXIS 7210

Appeal from a judgment of the Supreme Court (Cannizzaro, J.), entered November 15, 2004 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 his request for parole release.

Petitioner is serving a prison sentence of 15 years to life for his 1989 conviction of murder in the second degree. In September 2003, petitioner made his initial appearance before the Board of Parole and his request for release was denied. After an unsuccessful administrative appeal, petitioner commenced this CPLR article 78 proceeding challenging the Board’s determination. Supreme Court dismissed the petition, prompting this appeal.

We affirm. It is well settled that a parole determination is not subject to further judicial review if made in accordance with the statutory requirements (see Executive Law § 259-i [5]), unless “there is a ‘showing of irrationality bordering on impropriety’ (Matter of Silmon v Travis, 95 NY2d 470, 476 [2000], quotingMatter of Russo v New York State Bd. of Parole, 50 NY2d 69, 77 [1980]). Contrary to petitioner’s contention, a review of the record and parole hearing transcript establishes that the Board considered his institutional record, participation in various institutional programs and plans upon release, as well as petitioner’s explanation of the crime and statement of remorse. Although the determination placed particular emphasis on the nature of the instant offense, the Board is not required to discuss or give equal weight to every factor it considered in rendering its determination (see Matter of Legette v Travis, 11 AD3d 849, 850 [2004]; Matter of Wan Zhang v Travis, 10 AD3d 828, 829 [2004]). Inasmuch as the discretionary release determination was made in accordance with the relevant statutory factors (see Executive Law § 259-i [2] [c] [A]), it will not be disturbed (see Matter of Waters v New York State Div. of Parole, 271 AD2d 779 [2000]; Matter of Hawkins v Travis, 259 AD2d 813 [1999], appeal dismissed 93 NY2d 1033 [1999]).

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