| Matter of Johnson v Dennison |
| 2008 NY Slip Op 00807 [48 AD3d 1082] |
| February 1, 2008 |
| Appellate Division, Fourth Department |
| In the Matter of Daniel Johnson, Appellant, v Robert J. Dennison,as Chairman of New York State Division of Parole, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), forrespondent-respondent.
Appeal from a judgment (denominated order) of the Supreme Court, Erie County (Russell P.Buscaglia, A.J.), entered April 10, 2007 in a proceeding pursuant to CPLR article 78. Thejudgment dismissed the petition.
It is hereby ordered that the judgment so appealed from is unanimously affirmed withoutcosts.
Memorandum: Petitioner appeals from a judgment dismissing his petition pursuant to CPLRarticle 78 seeking to annul the determination of the New York State Division of Parole (ParoleBoard) denying him parole release for the second time, in December 2005. Petitioner wasconvicted of murder in the second degree (Penal Law §§ 20.00, 125.25 [1]) in 1989on a theory of accessorial liability, and County Court imposed the minimum sentence of 15 yearsto life imprisonment (see § 70.00 [2] [a]; [3] [a] [i]). We reject petitioner'scontention that the Parole Board failed to review the sentencing minutes and thus that thedetermination of the Parole Board was arbitrary and capricious. Although the Parole Board didnot expressly discuss the sentencing minutes, the record establishes that those minutes werebefore the Parole Board (cf. Matter ofStandley v New York State Div. of Parole, 40 AD3d 1344, 1345 [2007]), and the recordfurther establishes that the Parole Board was aware that the minimum sentence had been imposedby the court (see Executive Law § 259-i [1] [a]). Furthermore, the Parole Boardacknowledged petitioner's clean disciplinary record while incarcerated and the many materialssubmitted on petitioner's behalf, and it commended petitioner on his many achievements whileincarcerated (see § 259-i [2] [c] [A] [i]; Matter of Silmon v Travis, 95NY2d 470, 476-477 [2000]). The Parole Board nevertheless determined that granting parolerelease would deprecate the seriousness of the crime (see § 259-i [2] [c] [A]).Where, as here, there is no "showing of irrationality bordering on impropriety," judicialintervention is not warranted (Matter of Russo v New York State Bd. of Parole, 50 NY2d69, 77 [1980]; see Silmon, 95 NY2d at 476). Present—Scudder, P.J., Martoche,Peradotto, Pine and Gorski, JJ.