Olivera v. Dennison

Oct 20, 2005
Versions:22 A.D.3d 949
802 N.Y.S.2d 270

Appeal from a judgment of the Supreme Court (Canfield, J.), entered May 17, 2005 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.

Petitioner was convicted in 1981 of murder in the second degree and criminal possession of a weapon in the second degree and sentenced, respectively, to 15 years to life and 2 to 6 years in prison. He made his fifth appearance before the Board of Parole in April 2004 seeking parole release. His request was denied, based largely upon the violent circumstances of petitioner’s criminal acts which involved the shooting of two victims, one fatally. The Board ordered him held an additional 24 months. After the determination was upheld on administrative appeal, petitioner commenced this CPLR article 78 proceeding challenging it. Following service of respondent’s answer, Supreme Court dismissed the petition, resulting in this appeal.

Based upon our review of the record, it appears that the Board took into account the statutory factors required by Executive Law § 259-i in rendering its discretionary determination (see Matter of Zayd WW. v Travis, 17 AD3d 755, 755 [2005], lv denied 5 NY3d 706 [2005]). In addition to the serious nature of petitioner’s criminal conduct, it considered his lack of a prior criminal record, positive program accomplishments and clean disciplinary record. The Board was not required to accord each factor equal weight (see Matter of De La Cruz v Travis, 10 AD3d 789, 790 [2004]). Under the circumstances presented, the Board’s decision does not evince “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]). Therefore, we decline to disturb it.

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