MacKenzie v. Dennison

Oct 23, 2008
Versions:55 A.D.3d 1092
866 N.Y.S.2d 384

In the Matter of JOHN MACKENZIE, Appellant, v ROBERT DENNISON, as Chair of the New York State Division of Parole, Respondent. [866 NYS2d 384]—

Appeal from a judgment of the Supreme Court (Stein, J.), entered December 17, 2007 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent denying petitioner’s request for parole release.

Petitioner was convicted in 1982 of numerous crimes in connection with the fatal shooting of a police officer during a burglary. He is currently serving a term of 25 years to life in prison. On August 15, 2006, he made his fourth appearance before the Board of Parole for parole release. At the conclusion of the hearing, the Board denied his request, noting that his release would deprecate the seriousness of his offense, and ordered him held for an additional 24 months. When petitioner did not receive a response to his administrative appeal, he commenced this CPLR article 78 proceeding. Following joinder of issue, Supreme Court dismissed the petition and this appeal ensued.

We affirm. The Board considered the relevant statutory factors set forth in Executive Law § 259-i, including the violent nature of petitioner’s crimes, his criminal history, prison disciplinary record, program accomplishments and postrelease plans, in denying his request for parole release (see Matter of Schettino v New York State Div. of Parole, 45 AD3d 1086, 1086 [2007]; Matter of Cruz v New York State Div. of Parole, 39 AD3d 1060, 1062 [2007]). The Board was not required to give each factor equal weight and could, as it did, place primary emphasis on the serious nature of petitioner’s crimes (see Matter of Gardiner v New York State Div. of Parole, 48 AD3d 871, 872 [2008]; Matter of McCorkle v New York State Div. of Parole, 19 AD3d 791, 791-792 [2005]). We reject petitioner’s claim that the Board’s decision is the product of an informal executive policy against granting parole to violent felons (see Matter of Motti v Dennison, 38 AD3d 1030, 1031 [2007]; Matter of Salahuddin v Dennison, 34 AD3d 1082, 1083 [2006]). Inasmuch as 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]), we decline to disturb it.

Cardona, P.J., Spain, Lahtinen, Malone Jr. and Kavanagh, JJ., concur. Ordered that the judgment is affirmed, without costs.