| Matter of Berry v New York State Div. of Parole |
| 2008 NY Slip Op 03359 [50 AD3d 1346] |
| April 17, 2008 |
| Appellate Division, Third Department |
| In the Matter of Kahill Berry, Appellant, v New York StateDivision of Parole, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Frank Brady of counsel), forrespondent.
Appeal from a judgment of the Supreme Court (Donohue, J.), entered July 31, 2007 inAlbany 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.
In 1993, petitioner was convicted upon his plea of guilty of attempted possession of aweapon in the third degree and sentenced as a second violent felony offender to a prison term oftwo years to life. In May 2006, the Board of Parole denied petitioner's request for parole releasefor the seventh time and ordered him held for an additional 24 months. Petitioner commencedthis CPLR article 78 proceeding challenging that determination. Following joinder of issue,Supreme Court dismissed the petition, prompting this appeal.
Contrary to petitioner's contention, the Board did not rely solely on the nature of the crime inrendering its decision. Rather, the record reflects that the Board properly considered other factorsenumerated in Executive Law § 259-i, including petitioner's positive institutionalprogramming record and achievements, his minimal disciplinary record, his receipt of certificatesof earned eligibility and his plans for reentering the community. However, the Board is notrequired to give each factor equal weight and was free to emphasize the serious nature of theinstant offense, which was committed while petitioner was on parole and which involved theexchange of gunfire causing injury to the intended victim, injury to a police officer and the deathof petitioner's codefendant (see Matter of Martin v New York State Div. of Parole, 47AD3d [*2]1152, 1152 [2008]; Matter of Schettino v New York State Div. of Parole, 45 AD3d1086, 1086 [2007]). Inasmuch as petitioner has not established that the Board's decision wasirrational to the point of impropriety (see Matter of Silmon v Travis, 95 NY2d 470, 476[2000]), it will not be disturbed. Petitioner's remaining contentions, including his claim that theBoard's decision effectively constitutes resentencing, have been considered and found to bewithout merit.
Mercure, J.P., Carpinello, Rose, Malone Jr. and Kavanagh, JJ., concur. Ordered that thejudgment is affirmed, without costs.