| Matter of Hopkins v New York State Bd. of Parole |
| 2008 NY Slip Op 04590 [51 AD3d 1311] |
| May 22, 2008 |
| Appellate Division, Third Department |
| In the Matter of John D. Hopkins, Appellant, v New York StateBoard of Parole, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Frank K. Walsh of counsel), forrespondent.
Appeal from a judgment of the Supreme Court (McNamara, J.), entered September 18, 2007in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLRarticle 78, to review a determination of respondent denying petitioner's request for parole release.
In 2003, petitioner was sentenced as a second felony offender to a prison term of 1½ to3 years for his conviction upon his plea of guilty of grand larceny in the fourth degree. At thetime of his incarceration, petitioner owed eight years, one month and two days on priorundischarged sentences. After petitioner made a reappearance before respondent in August 2006,his request for parole release was denied. Petitioner commenced this CPLR article 78 proceedingwhen his administrative appeal was not timely decided. Supreme Court dismissed the petition,prompting this appeal.
Petitioner primarily contends that respondent's determination must be annulled because itconsidered erroneous information; namely, that he is currently serving a sentence of 1½ to3 years upon his grand larceny conviction. According to petitioner, that sentence expired inMarch 2006. However, that sentence was imposed pursuant to Penal Law § 70.06 and, byoperation of law, it runs consecutively to his previous undischarged sentences (see PenalLaw § 70.25 [2-a]; Matter ofJackson v Smith, 36 AD3d 1067, 1068 [2007]). As such, respondent did not err instating that petitioner was still subject to that sentence (see e.g. Matter of Cook v Goord,275 AD2d 819, 820 [2000], lv denied 95 NY2d 769 [2000]). Furthermore, the recorddemonstrates that respondent properly considered the appropriate statutory factors (seeExecutive Law § 259-[*2]i), including petitioner's lengthymultistate criminal history, his disciplinary history, as well as his institutional achievements,earned eligibility certificate and plans for postrelease integration into the community, beforeconcluding that there was a reasonable probability that petitioner could not live at liberty withoutviolating the law. As petitioner has not demonstrated that respondent's decision was affected by"irrationality bordering on impropriety" (Matter of Silmon v Travis, 95 NY2d 470, 476[2000] [internal quotation marks and citation omitted]; see Matter of Serrano v Dennison, 46 AD3d 1002 [2007]), wedecline to disturb it.
Cardona, P.J., Mercure, Peters, Lahtinen and Kane, JJ., concur. Ordered that the judgment isaffirmed, without costs.