| Matter of Motti v Alexander |
| 2008 NY Slip Op 06910 [54 AD3d 1114] |
| September 18, 2008 |
| Appellate Division, Third Department |
| In the Matter of Serge Motti, Appellant, v George Alexander, asChair of the New York State Division of Parole, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), forrespondent.
Lahtinen, J. Appeal from a judgment of the Supreme Court (Egan, Jr., J.), entered January 3,2008 in Albany County, which dismissed petitioner's application, in a proceeding pursuant toCPLR article 78, to review a determination of the Board of Parole denying petitioner's request forparole release.
Petitioner was convicted of two counts of murder in the second degree in 1979 and wassentenced to concurrent terms of 15 years to life in prison. In June 2007, petitioner made hiseighth appearance before the Board of Parole for parole release. His request was denied and hewas ordered to be held for an additional 24 months. After an unsuccessful administrative appeal,petitioner commenced this CPLR article 78 proceeding. Supreme Court dismissed the petition,prompting this appeal.
We affirm. Initially, we note that, contrary to petitioner's claim, the fact that he has served hisminimum sentence does not give him a protected liberty interest in parole release (see Matterof Warren v New York State Div. of Parole, 307 AD2d 493, 493 [2003]; Matter ofVineski v Travis, 244 AD2d 737, 738 [1997], lv denied 91 NY2d 809 [1998]).Petitioner's assertion that the Board failed to comply with the requirements of Executive Law§ 259-i is also without merit. The record demonstrates that the Board considered theappropriate statutory [*2]factors in denying his request(see Executive Law § 259-i [2] [c]), including petitioner's educational and programachievements, his prison disciplinary record, his postrelease plans, as well as the seriousness ofhis crimes (see Matter of Cruz v NewYork State Div. of Parole, 39 AD3d 1060, 1061-1062 [2007]; Matter of Marsh v New York State Div. ofParole, 31 AD3d 898, 898 [2006]). Moreover, despite petitioner's contention to thecontrary, the Board may place a greater emphasis on the seriousness of his crimes than on theother statutory factors, as it was not required to weigh each factor equally or articulate the weightaccorded to each factor (see Matter ofGardiner v New York State Div. of Parole, 48 AD3d 871, 872 [2008]; Matter of Rivera v Dennison, 25 AD3d856, 857 [2006]).
Petitioner further contends that the Board erroneously failed to consider his sentencingminutes in rendering its decision (seeMatter of Standley v New York State Div. of Parole, 34 AD3d 1169, 1170 [2006]).While the Board does not concede this point, there is nothing in the record indicating that thesentencing minutes were considered. A review of the sentencing minutes reveals, however, thatthe sentencing court made no parole recommendations. Therefore, we find any failure to considerthe sentencing minutes to be harmless (see Matter of Schettino v New York State Div. of Parole, 45 AD3d1086, 1087 [2007]). Accordingly, inasmuch as the Board's decision does not exhibit "'irrationality bordering on impropriety' " (Matter of Silmon v Travis, 95 NY2d 470, 476[2000], quoting Matter of Russo v New York State Bd. of Parole, 50 NY2d 69, 77[1980]), we find no reason to disturb it.
Peters, J.P., Rose, Kane and Kavanagh, JJ., concur. Ordered that the judgment is affirmed,without costs.