| Matter of Marcus v Alexander |
| 2008 NY Slip Op 06533 [54 AD3d 476] |
| August 7, 2008 |
| Appellate Division, Third Department |
| In the Matter of Daniel Marcus, Appellant, v George Alexander, asChair of the Board of Parole, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Frank Brady of counsel), forrespondent.
Appeal from a judgment of the Supreme Court (Devine, J.), entered December 24, 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 April 1990, petitioner was sentenced to 15 years to life in prison for his conviction uponhis plea of guilty of murder in the second degree. Petitioner made his second appearance beforethe Board of Parole in September 2006. The Board denied petitioner's request for parole releaseand ordered him held an additional 24 months. After exhausting his administrative remedies,petitioner commenced this CPLR article 78 proceeding challenging the decision. Supreme Courtdismissed the petition and this appeal ensued.
Contrary to petitioner's contention, there are sufficient facts in the Board's written decisionand the record as a whole to support its decision to deny petitioner's application for parole basedon the nature and circumstances of his crime (compare Matter of Wallman v Travis, 18 AD3d 304, 307-308[2005]). The Board's decision here reflects that it considered the relevant statutory factors, suchas petitioner's positive institutional programming accomplishments and his improved disciplinaryrecord, as well as the seriousness of the crime (see Executive Law § 259-i; Matter of Gutkaiss v New York State Div.of Parole, 50 AD3d 1418, 1418-1419 [2008]). The Board was not required to give eachfactor equal weight and was free to place greater emphasis on the heinous nature of this murderfor hire which petitioner committed by shooting the victim [*2]atpoint-blank range in the back of the head (see Matter of Gardiner v New York State Div. of Parole, 48 AD3d871, 872 [2008]). In light of this and upon our review of the record as a whole, we cannotagree that the Board's decision "evidenced irrationality bordering on impropriety" (Matter of Romer v Dennison, 24 AD3d866, 868 [2005], lv denied 6 NY3d 706 [2006]; see Matter of Silmon vTravis, 95 NY2d 470, 476 [2000]).
Cardona, P.J., Mercure, Rose, Lahtinen and Kane, JJ., concur. Ordered that the judgment isaffirmed, without costs.