| Matter of Mitchell v New York State Div. of Parole |
| 2009 NY Slip Op 00390 [58 AD3d 742] |
| January 20, 2009 |
| Appellate Division, Second Department |
| In the Matter of Roger Mitchell, Respondent, v New YorkState Division of Parole, Sued Herein as New York State Board of Parole,Appellant. |
—[*1] Roger Mitchell, Warwick, N.Y., respondent pro se.
In a proceeding pursuant to CPLR article 78 to review a determination of the New YorkState Division of Parole dated February 8, 2007, which, after a hearing, denied the petitioner'sapplication to be released to parole, the appeal is from a judgment of the Supreme Court, OrangeCounty (Alessandro, J.), dated March 28, 2008, which granted the petition, annulled thedetermination, and, in effect, remitted the matter to the New York State Division of Parole for anew hearing.
Ordered that the judgment is affirmed, without costs or disbursements.
Pursuant to Executive Law article 12-B, the New York State Division of Parole (hereinafterthe Parole Board) is required to consider a number of statutory factors in determining whether aninmate should be released to parole (see Matter of King v New York State Div. ofParole, 83 NY2d 788, 790 [1994]; Executive Law § 259-i [2] [c]). While the ParoleBoard need not expressly discuss each of these factors in its determination (see Matter ofKing v New York State Div. of Parole, 83 NY2d at 790), it must, by law, inform the inmatein writing of the factors and reasons for denial of parole, and "[s]uch reasons shall be given indetail and not in conclusory terms" (Executive Law § 259-i [2] [a]). The written decisionin this case stated that denial of parole was based on the circumstances of the underlying crime.[*2]While the seriousness of the underlying offense remainsacutely relevant in determining whether the petitioner should be released on parole, the recordsupports the petitioner's contention that the Parole Board failed to take other relevant statutoryfactors into account (see Matter of Silmon v Travis, 95 NY2d 470 [2000]; see Matter of Wallman v Travis, 18AD3d 304 [2005]; Matter of King v New York State Div. of Parole, 190 AD2d 423,432-433 [1993], affd 83 NY2d 788 [1994]). Accordingly, the Supreme Court correctlygranted the petition to the extent of vacating the determination and directing a new hearing.Spolzino, J.P., Covello, Balkin and Belen, JJ., concur.