Matter of Brower v Alexander

2008 NY Slip Op 09518 [57 AD3d 1060]

December 4, 2008

Appellate Division, Third Department

As corrected through Wednesday, February 11, 2009

In the Matter of Reginald Brower, Appellant, v George Alexander, asChair of the New York State Division of Parole, Respondent.

—[*1]Reginald Brower, Woodbourne, appellant pro se.

Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), forrespondent.

Appeal from a judgment of the Supreme Court (Cahill, J.), entered March 12, 2008 in AlbanyCounty, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, toreview a determination of the Board of Parole denying petitioner's request for parole release.

In 1996, petitioner was convicted of criminal possession of a controlled substance in the seconddegree and assault in the second degree. He was sentenced as a second violent felony offender toconsecutive prison terms of 81/3 to life on the criminal possession charge and 3½to 7 years on the assault charge. In April 2007, he made his first appearance before the Board ofParole. The Board denied his request for parole release and ordered him held for an additional 24months. When he did not receive a decision on his administrative appeal, he commenced this CPLRarticle 78 proceeding. Following joinder of issue, Supreme Court dismissed the petition and this appealensued.

We affirm. "Parole determinations are not subject to further judicial review if they are made inaccordance with the statutory requirements of Executive Law § 259-i" (Matter of Pulliam v Dennison, 38 AD3d963, 963 [2007] [citations omitted]). The record in the case at hand reveals that the Boardconsidered the appropriate statutory factors, including the seriousness of petitioner's crimes, his criminalhistory, prison disciplinary record, program accomplishments [*2]andpostrelease plans (see Matter of Mojica vTravis, 34 AD3d 1155, 1156 [2006]). The Board was not required to specifically articulateeach factor considered in making its decision nor to accord each factor equal weight (see Matter of Vasquez v Dennison, 28AD3d 908, 909 [2006]; Matter of WanZhang v Travis, 10 AD3d 828, 829 [2004]). Contrary to petitioner's claim, the Board did notbase its decision upon erroneous information. Notably, the Board was permitted to consider all thecircumstances surrounding petitioner's crimes, including conduct for which he was not convicted, as thiswas not the sole basis for its decision (seeMatter of Nunez v Dennison, 51 AD3d 1240, 1241 [2008]). In sum, inasmuch as the Board'sdecision does not exhibit " 'irrationality bordering upon impropriety' " (Matter of Silmon vTravis, 95 NY2d 470, 476 [2000], quoting Matter of Russo v New York State Bd. ofParole, 50 NY2d 69, 77 [1980]), we find no reason to disturb it.

Cardona, P.J., Carpinello, Rose, Kavanagh and Stein, JJ., concur. Ordered that the judgment isaffirmed, without costs.