| Matter of Schettino v New York State Div. of Parole |
| 2007 NY Slip Op 08815 [45 AD3d 1086] |
| November 15, 2007 |
| Appellate Division, Third Department |
| In the Matter of Joseph Schettino, Appellant, v New York StateDivision of Parole, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Nancy A. Spiegel of counsel), forrespondent.
Appeal from a judgment of the Supreme Court (Egan, Jr., J.), entered December 27, 2006 inColumbia County, which dismissed petitioner's application, in a proceeding pursuant to CPLRarticle 78, to review a determination of the Board of Parole denying petitioner's application forparole release.
In 1985, petitioner was convicted of murder in the second degree and was sentenced to 15years to life in prison. In February 2006, he made his fourth appearance before the Board ofParole for parole release. The Board concluded that release was inappropriate because it would"deprecate the severity of the instant offense and serve to undermine respect for the law" andordered petitioner held for an additional 24 months. Petitioner filed an administrative appeal but,when he did not receive a timely response, he commenced this CPLR article 78 proceeding.Following service of respondent's answer, Supreme Court dismissed the petition and this appealensued.
We affirm. Petitioner asserts that the Board did not take into account the proper factors indenying him parole release. The record, however, discloses that in denying petitioner's requestfor parole release, the Board considered the factors set forth in Executive Law § 259-i,including the serious nature of the crime, petitioner's negligible criminal history, his programaccomplishments, his favorable prison disciplinary record and his postrelease plans (see Matter of Salahuddin v Dennison,34 AD3d 1082, 1083 [2006]; Matter of Duffy v Dennison, 34 AD3d [*2]1083 [2006]). The Board was not required to give equal weight toeach of the foregoing factors and could place greater emphasis on the serious nature of the crime,which involved the violent stabbing death of a male acquaintance (see Matter of McCorkle v New York StateDiv. of Parole, 19 AD3d 791, 791-792 [2005]).
Petitioner also claims that the Board did not review the sentencing minutes of the trial courtand, therefore, erroneously failed to consider its sentencing recommendations (seeExecutive Law § 259-i [1] [a] [i]; [2] [c] [A]; Matter of Standley v New York State Div. of Parole, 34 AD3d1169 [2006]). While the Board has not conceded that it failed to review the sentencingminutes, the record does not indicate that it, in fact, did so (cf. Matter of Carter v Dennison, 42 AD3d 779 [2007]).
Clearly, the Board is required to consider any recommendations made by the sentencingjudge in making parole release determinations (see id.). Here, however, the sentencingminutes—attached as an exhibit to the Board's answer—contain no sentencing orparole recommendations. The only substantive comment made by the sentencing judge was thatthe imposed minimum sentence was not longer due to petitioner's minimal criminal record.Given that the Board expressly considered petitioner's prior record in rendering its determination,we find any error by the Board in failing to review the sentencing minutes to be harmless.Petitioner's remaining contentions have been considered and found to be without merit. In sum,the Board's decision does not exhibit " 'irrationality bordering on impropriety' " (Matter ofSilmon v Travis, 95 NY2d 470, 476 [2000], quoting Matter of Russo v New York StateBd. of Parole, 50 NY2d 69, 77 [1980]) and we, therefore, decline to disturb it.
Cardona, P.J., Spain, Mugglin, Lahtinen and Kane, JJ., concur. Ordered that the judgment isaffirmed, without costs.