Matter of Gutkaiss v New York State Div. of Parole

2008 NY Slip Op 03541 [50 AD3d 1418]

April 24, 2008

Appellate Division, Third Department

As corrected through Wednesday, June 18, 2008

In the Matter of Timothy Gutkaiss, Appellant, v New York StateDivision of Parole, Respondent.

—[*1]Timothy Gutkaiss, Hudson, appellant pro se.

Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco of counsel), forrespondent.

Appeal from a judgment of the Supreme Court (Devine, J.), entered August 21, 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 his request for parole release.

Petitioner is currently serving a prison sentence of 81/3 to 25 years for his 1993conviction after a jury trial of sodomy in the first degree. The charges stemmed from an incidentin which petitioner engaged in oral sexual conduct with his six-year-old nephew. In July 2006,petitioner appeared for the third time before the Board of Parole and his request for parole releasewas denied. Petitioner filed an administrative appeal but, when he did not receive a timelyresponse, he commenced the instant CPLR article 78 proceeding. Following joinder of issue,Supreme Court dismissed the petition, prompting this appeal.

Contrary to petitioner's contentions, the Board's decision was not rendered irrational by itscharacterization of his criminal conduct as representing a "propensity for extreme violence." Aspetitioner concedes, sodomy in the first degree is a violent felony offense (see Penal Law§§ 70.02, 130.50). It was not irrational for the Board to determine that grantingpetitioner early release would "deprecate the seriousness of [his] violent act and underminerespect for the law." Although petitioner has successfully completed many institutional programsdesigned to address and manage violent tendencies, "[d]iscretionary release on parole shall not begranted merely as a reward for good conduct or efficient performance of duties while confined"(Executive Law § 259-i [2] [c] [A]). The record reflects that the Board considered all therelevant statutory factors, including petitioner's positive institutional programming, minimaldisciplinary record and postrelease plans and goals (see Executive Law § 259-i)and petitioner has not demonstrated that the Board's decision was irrational to the point ofimpropriety (see Matter of Silmon v Travis, 95 NY2d 470, 476 [2000]; Matter of Martin v New York State Div. ofParole, 47 AD3d 1152, 1152-1153 [2008]). Thus, the Board's decision should not bedisturbed.

Petitioner's remaining contentions have been reviewed and found to be without merit.

Cardona, P.J., Spain, Carpinello, Kane and Stein, JJ., concur. Ordered that the judgment isaffirmed, without costs.