| Matter of MacKenzie v Evans |
| 2012 NY Slip Op 04252 [95 AD3d 1613] |
| May 31, 2012 |
| Appellate Division, Third Department |
| 2—In the Matter of John MacKenzie, Appellant, v AndreaEvans, as Chair of the New York State Division of Parole,Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Allyson B. Levine of counsel), forrespondent.
Rose, J.P. Appeal from a judgment of the Supreme Court (LaBuda, J.), entered September11, 2011 in Sullivan County, which dismissed petitioner's application, in a proceeding pursuantto CPLR article 78, to review a determination of the Board of Parole denying his request forparole release.
In 1982, petitioner was convicted of a number of crimes, including murder in the seconddegree, after he shot and killed a police officer during the course of a burglary (People vMacKenzie, 193 AD2d 700 [1993], lv denied 82 NY2d 722 [1993]). He wassentenced to an aggregate prison term of 25 years to life. In June 2010, he made his sixthappearance before the Board of Parole seeking to be released to parole supervision. Following ahearing, the Board again denied his request and ordered him held an additional 24 months. Thedecision was affirmed on administrative appeal and petitioner commenced this CPLR article 78proceeding challenging it. Following service of respondent's answer, Supreme Court dismissedthe petition and this appeal ensued.
We affirm. It is well settled the parole release decisions are discretionary and will not bedisturbed as long as the Board complied with the statutory requirements of Executive Law§ [*2]259-i (see Matter of Valentino v Evans, 92 AD3d 1054 [2012]; Matter of Sanchez v Division ofParole, 89 AD3d 1305, 1306 [2011]). In accordance with those requirements,[FN*]the Board considered not only the serious nature of petitioner's crimes, but also his criminalhistory, positive program accomplishments, clean prison disciplinary record for over 30 years andpostrelease plans (see Matter ofMacKenzie v Dennison, 55 AD3d 1092, 1092 [2008]; Matter of Burress v Dennison, 37AD3d 930, 931 [2007]). Although the Board placed greater emphasis on the severity of thecrimes than on the other statutory factors in concluding that petitioner's release was"incompatible with the welfare and safety of the community, and will so deprecate theseriousness of th[e] crime[s] as to undermine respect for the law," it was entitled to do so as theBoard was not required to give equal weight to each of the statutory factors (see Matter ofSanchez v Division of Parole, 89 AD3d at 1306; Matter of Matos v New York State Bd. of Parole, 87 AD3d 1193,1194 [2011]). Contrary to petitioner's assertions, the publicity generated by certain members ofthe Legislature purporting to take credit for the denial of parole to petitioner does not substantiatehis contention that the Board's decision was the result of political pressure (see generally Matter of Allah v Pataki,15 AD3d 810, 811 [2005], appeal dismissed 5 NY3d 780 [2005]; Matter ofMcGovern v Travis, 268 AD2d 924, 925 [2000]). Likewise, his challenge to theconstitutionality of the statute is unavailing (see Matter of Felder v Travis, 278 AD2d570, 571 [2000]; Matter of Jerrell v Ibsen, 253 AD2d 917 [1998]). In sum, given that theBoard's decision does not evince " 'irrationality bordering on impropriety' " (Matter of Silmonv Travis, 95 NY2d 470, 476 [2000], quoting Matter of Russo v New York State Bd. ofParole, 50 NY2d 69, 77 [1980]), we decline to disturb it.
Malone Jr., Stein, Garry and Egan Jr., JJ., concur. Ordered that the judgment is affirmed,without costs.
Footnote *: We note that Executive Law§ 259-i and related parole statutes were amended after the Board's decision in this case(see L 2011, ch 62, § 1, part C, § 1, subpart A, §§ 38-b, 38-f-1).