| Matter of Valerio v New York State Div. of Parole |
| 2009 NY Slip Op 01063 [59 AD3d 802] |
| February 11, 2009 |
| Appellate Division, Third Department |
| In the Matter of Victor Valerio, Appellant, v New York StateDivision of Parole, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), forrespondent.
Appeal from a judgment of the Supreme Court (Cahill, J.), entered May 22, 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.
While under probation supervision stemming from his prior conviction for criminalpossession of a weapon in the third degree, petitioner stole a motor vehicle at gunpoint and thenrobbed one toll booth and attempted to rob another. As a result, petitioner pleaded guilty torobbery in the first degree (two counts), attempted robbery in the first degree and criminalpossession of a weapon in the third degree. Petitioner was sentenced to an aggregate term ofimprisonment of 11 to 24 years. In April 2007, petitioner made his second appearance before theBoard of Parole seeking release to parole supervision. The Board denied his request and orderedthat he be held an additional 24 months. When petitioner did not receive a response to hisensuing administrative appeal, he commenced this CPLR article 78 proceeding challenging thedenial of his request for parole release. Following joinder of issue, Supreme Court dismissed thepetition. Petitioner now appeals.
We affirm. In denying petitioner parole release, the Board considered the pertinent statutoryfactors set forth in Executive Law § 259-i, including the nature of petitioner's crimes andhis prior criminal history, along with his prison disciplinary record, program achievements [*2]and postrelease plans (see Matter of MacKenzie v Dennison, 55 AD3d 1092, 1092[2008]). Regarding petitioner's claim that the Board improperly failed to consider his sentencingminutes in rendering its decision, any failure in this regard was harmless inasmuch as thesentencing court made no parole recommendations (see Matter of Motti v Alexander, 54 AD3d 1114, 1115 [2008]).Accordingly, given that the Board's decision does not exhibit " 'irrationality bordering onimpropriety' " (Matter of Silmon v Travis, 95 NY2d 470, 476 [2000], quoting Matterof Russo v New York State Bd. of Parole, 50 NY2d 69, 77 [1980]), we find no reason todisturb it.
Petitioner's remaining contentions, to the extent not specifically addressed herein, have beenexamined and found to be unavailing.
Rose, J.P., Kane, Malone Jr., Kavanagh and Stein, JJ., concur. Ordered that the judgment isaffirmed, without costs.