| Matter of Gardiner v New York State Div. of Parole |
| 2008 NY Slip Op 01274 [48 AD3d 871] |
| February 14, 2008 |
| Appellate Division, Third Department |
| In the Matter of James Gardiner, Appellant, v New York StateDivision of Parole, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Frank K. Walsh of counsel), forrespondent.
Appeal from a judgment of the Supreme Court (Pritzker, J.), entered June 11, 2007 inWashington 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 request for parolerelease.
Following his 1985 conviction of robbery in the first degree and attempted robbery in thefirst degree, petitioner was sentenced to concurrent terms of 7½ to 15 years in prison.While incarcerated, he stabbed another inmate to death and was subsequently convicted ofmanslaughter in the first degree. He was sentenced to 10 to 20 years in prison on this charge,which sentence was to run consecutive to the sentence he was then serving. In June 2006,petitioner made his third appearance before the Board of Parole for parole release. At theconclusion of the hearing, the Board denied his request and ordered him held for an additional 24months. Petitioner took an administrative appeal and commenced this CPLR article 78proceeding when a determination was not rendered within four months. Following joinder ofissue, Supreme Court dismissed the petition and this appeal ensued.
We affirm. Contrary to petitioner's claim, the record does not reveal that the Board based itsdecision solely upon the serious nature of his crimes. The Board also considered other statutoryfactors set forth in Executive Law § 259-i, including petitioner's prior conviction for [*2]robbery in the second degree, prior parole violations, his prisondisciplinary record, his program accomplishments and his postrelease plans (see Matter of Mojica v Travis, 34AD3d 1155, 1156 [2006]). The Board was not required to give each factor equal weight andcould, as it did, choose to place greater emphasis on the seriousness of petitioner's crimes (see Matter of Motti v Dennison, 38AD3d 1030, 1031 [2007]). Although the record improperly includes arrest information onsealed criminal matters, the Board did not rely on this information and we deem it harmless (see Matter of Grune v Board of Parole,41 AD3d 1014, 1015 [2007]). Petitioner's remaining contentions are unavailing. Insofar asthe 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]), we find no reason to disturb it.
Cardona, P.J., Carpinello, Lahtinen, Kane and Kavanagh, JJ., concur. Ordered that thejudgment is affirmed, without costs.