Cody v. Dennison

Oct 26, 2006
Versions:33 A.D.3d 1141
822 N.Y.S.2d 677

[822 NYS2d 677]

Appeal from a judgment of the Supreme Court (Sackett, J.), entered April 20, 2006 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 1986, petitioner was convicted of murder in the second degree and he was sentenced to 20 years to life in prison. He made his initial appearance before the Board of Parole in January 2005. The Board denied his request for parole release and ordered him held for an additional 24 months. After the determination was affirmed on administrative appeal, petitioner commenced this CPLR article 78 proceeding. Supreme Court ultimately dismissed the petition and this appeal ensued.

We affirm. The record discloses that in addition to the violent nature of the crime, the Board took into account relevant statutory factors, including petitioner‘s criminal history, his prison disciplinary record, program accomplishments and postrelease plans, in denying him parole release (see Executive Law § 259-i [1] [a]; [2] [c] [A]; Matter of Baez v Dennison, 25 AD3d 1052 [2006], lv denied 6 NY3d 713 [2006]). The record does not support petitioner‘s assertion that the Board improperly took into consideration his decision to go to trial. In addition, while petitioner argues that the Board improperly extended his 20-year minimum period of incarceration by denying him parole, the Board was vested with the discretion to determine whether release was appropriate notwithstanding the fact that the sentencing court set this as the minimum term of petitioner‘s sentence (see Matter of Silmon v Travis, 95 NY2d 470, 476 [2000]). We have considered petitioner‘s remaining contentions and find them to be unavailing. Inasmuch as there is nothing to indicate that the Board‘s decision evinces ” ‘irrationality bordering on impropriety’ ” (id., quoting Matter of Russo v New York State Bd. of Parole, 50 NY2d 69, 77 [1980]), we decline to disturb it.

Cardona, P.J., Crew III, Carpinello, Rose and Lahtinen, JJ., concur. Ordered that the judgment is affirmed, without costs.