| Matter of Abbas v New York State Div. of Parole |
| 2009 NY Slip Op 03069 [61 AD3d 1228] |
| April 23, 2009 |
| Appellate Division, Third Department |
| In the Matter of Mohamed Abbas, Appellant, v New York StateDivision of Parole, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Andrew B. Ayers of counsel), forrespondent.
Appeal from a judgment of the Supreme Court (Zwack, J.), entered August 5, 2008 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 forparole release.
Petitioner was convicted in 1996 of, among other things, attempted murder in the seconddegree and sentenced to a lengthy term of imprisonment (People v Abbas, 269 AD2d456 [2000], lv denied 95 NY2d 831 [2000]). In October 2000, the United StatesDepartment of Justice issued a deportation order against petitioner. Petitioner made his firstappearance before the Board of Parole in April 2007 and, at the conclusion of that hearing, theBoard denied petitioner's request for release and ordered that he be held for 24 months. Uponreceiving no response to his administrative appeal, petitioner commenced this CPLR article 78proceeding. Supreme Court dismissed petitioner's application, prompting this appeal.
We affirm. "It is well settled that decisions regarding release on parole are discretionary andwill not be disturbed absent a showing of irrationality bordering on impropriety" (Matter of Barnes v New York State Div. ofParole, 53 AD3d 1012, 1012 [2008] [internal quotation marks and citations omitted]; see Matter of De Lagarde v New YorkState Div. of Parole, 23 AD3d 876, 876-877 [2005]). Here, the transcript of the parolehearing reveals that the Board considered the relevant statutory factors (see ExecutiveLaw § 259-i), including the severity of the underlying [*2]crimes, petitioner's substantial history of disciplinary infractionsand his refusal to accept responsibility for his conduct. Although the Board's determination didnot specifically reference the deportation order, the Board plainly was aware of its existence and,in any event, was "not required to assign equal weight to or discuss every factor it considered inmaking its determination" (Matter ofHunter v New York State Div. of Parole, 21 AD3d 1178, 1178 [2005]). Further, while itis unclear whether the Board reviewed and considered the sentencing minutes, an examinationthereof reveals that the sentencing court made no recommendations as to parole and, therefore,we deem any error in this regard to be harmless (see Matter of Motti v Alexander, 54 AD3d 1114, 1115 [2008]).Finally, petitioner's claim that the Board's decision is the result of an informal executive policyof denying parole to violent felons, raised for the first time in his reply, is unpreserved for ourreview (see Matter of Cruz v Travis, 273 AD2d 648, 649 [2000]; cf. Matter ofLunney v Goord, 290 AD2d 687, 688 [2002]). In sum, as the Board's decision does notreflect irrationality bordering on impropriety (see Matter of Barnes v New York State Div. ofParole, supra), we decline to disturb it.
Cardona, P.J., Spain, Lahtinen, Kane and Kavanagh, JJ., concur. Ordered that the judgmentis affirmed, without costs.