Matter of Montalvo v New York State Bd. of Parole

2008 NY Slip Op 03559 [50 AD3d 1438]

April 24, 2008

Appellate Division, Third Department

As corrected through Wednesday, June 18, 2008

In the Matter of David Montalvo, Appellant, v New York StateBoard of Parole, Respondent.

—[*1]David Montalvo, Woodbourne, appellant pro se.

Andrew M. Cuomo, Attorney General, Albany (Frank Brady of counsel), forrespondent.

Appeal from a judgment of the Supreme Court (McNamara, J.), entered November 9, 2007 inAlbany County, which dismissed petitioner's application, in a proceeding pursuant to CPLRarticle 78, to review a determination of respondent denying his request for parole release.

In 1992, petitioner was convicted upon his plea of guilty of manslaughter in the first degreeand reckless endangerment in the first degree and sentenced to an aggregate prison term of101/3 to 31 years. In September 2006, petitioner made his third appearance beforerespondent and his request for parole release was denied. Petitioner thereafter commenced thisCPLR article 78 proceeding challenging that determination. Following joinder of issue, SupremeCourt dismissed the petition, prompting this appeal.

Contrary to petitioner's contentions, respondent considered the appropriate statutory factorsin denying his request for parole release (see Executive Law § 259-i). The recordreflects that, in addition to the nature and seriousness of the instant offense, in which petitionershot and killed a young man during a group altercation, respondent also considered petitioner'sexemplary institutional, academic and disciplinary record, his lack of a criminal history, hispositive family and community support, and potential employment opportunities (seeExecutive Law § 259-i). However, respondent was not required to give each factor equalweight (see Matter of Martin v NewYork State Div. of Parole, 47 AD3d 1152, 1152 [2008]) and was free to place emphasison the seriousness of the instant offense. As it cannot be said that respondent's decision to denypetitioner's request for parole release was affected by " 'irrationality bordering on impropriety' "(Matter of Silmon v Travis, 95 NY2d 470, 476 [2000], quoting Matter of Russo vNew York State Bd. of Parole, 50 NY2d 69, 77 [1980]), it will not be disturbed (see Matter of Cruz v New York State Div.of Parole, 39 AD3d 1060, 1062 [2007]).

Petitioner's remaining contentions have been considered and determined to be without merit.

Spain, J.P., Carpinello, Malone Jr., Kavanagh and Stein, JJ., concur. Ordered that thejudgment is affirmed, without costs.