| Matter of Nunez v Dennison |
| 2008 NY Slip Op 04420 [51 AD3d 1240] |
| May 15, 2008 |
| Appellate Division, Third Department |
| In the Matter of Luis Nunez, Appellant, v Robert Dennison, asChair of the New York State Board of Parole, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), forrespondent.
Appeal from a judgment of the Supreme Court (McDonough, J.), entered October 18, 2007in Albany 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.
Petitioner is currently serving an aggregate prison term of 12½ years to life for hisconvictions of robbery in the first degree (three counts), robbery in the second degree (twocounts) and criminal sale of a controlled substance in the second degree. The convictionsstemmed from various incidents, including a series of gun-point robberies. During one of theserobberies, petitioner's codefendant shot and killed a man. In September 2006, the Board of Paroledenied petitioner's fourth request for parole release citing, among other things, the fact thatpetitioner "expressed little remorse for [his] crimes despite the fact that an innocent person lost[his] life as a result of [his] and [his codefendant's] actions." When petitioner's subsequentadministrative appeal was not timely decided, he commenced this CPLR article 78 proceedingchallenging the Board's decision. Supreme Court dismissed the petition, prompting this appeal.
Petitioner claims that the Board relied on erroneous information and held him accountablefor murder, a charge for which he was acquitted. We disagree. The Board accurately stated thatduring one robbery, a victim was killed. During the hearing, the Board discussed with petitionerthe fact that his codefendant was convicted of murder. The Board is [*2]permitted to consider all of the circumstances of the instantoffenses, which may include conduct for which petitioner was not convicted, "so long as somerecord evidence of such conduct exists in the record and it is not the sole basis for the Board'sdetermination" (Matter of Williams vTravis, 11 AD3d 788, 790 [2004]; see Matter of Lynch v New York State Div. ofParole, 82 AD2d 1012 [1981]). Here, the record reflects that the Board also considered therelevant statutory factors, including the seriousness of the instant offenses and petitioner'slengthy criminal history and history of drug addiction, as well as his positive institutionalprogramming, lack of any recent disciplinary infractions and his plans for release (seeExecutive Law § 259-i [2] [c] [A]; Matter of Williams v Travis, 11 AD3d at 790).Under the circumstances presented, petitioner has not demonstrated that the Board's decision wasaffected by "irrationality bordering on impropriety" (Matter of Silmon v Travis, 95 NY2d470, 476 [2000] [internal quotation marks and citation omitted]) and, thus, it will not bedisturbed.
To the extent preserved, petitioner's remaining contentions have been considered and foundto be without merit.
Peters, J.P., Spain, Kane, Malone Jr. and Kavanagh, JJ., concur. Ordered that the judgment isaffirmed, without costs.