| Matter of Marziale v Alexander |
| 2009 NY Slip Op 04147 [62 AD3d 1227] |
| May 28, 2009 |
| Appellate Division, Third Department |
| In the Matter of Victor Marziale Jr., Appellant, v George B.Alexander, as Chair of the Division of Parole, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Kate H. Nepveu of counsel), forrespondent.
Appeal from a judgment of the Supreme Court (Lynch, J.), entered September 17, 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 currently is serving a prison term of 15 years to life following his 1991 convictionof murder in the second degree (People v Marziale, 182 AD2d 1035 [1992], lvdenied 80 NY2d 835 [1992]). Petitioner made his second appearance before the Board ofParole in October 2007 and, at the conclusion of the hearing, the Board denied petitioner'srequest for release and ordered him held for an additional 24 months. Upon receiving noresponse to his administrative appeal, petitioner commenced this CPLR article 78 proceedingseeking to annul the Board's determination. Supreme Court dismissed petitioner's application,prompting this appeal.
Contrary to petitioner's assertion, the Board did not deny his request for release based solelyupon the nature of the instant offense. Although the Board "need not enumerate, give equalweight to or explicitly discuss every factor considered" (Matter of Barnes v New York State Div. of Parole, 53 AD3d 1012,1012 [2008] [internal quotation marks and citations omitted]), a review of the record reveals thatthe Board considered the relevant statutory factors [*2]set forthin Executive Law § 259-i, including petitioner's positive program accomplishments andessentially clean disciplinary record, as well as his postrelease plans (see Matter of Serrano v Dennison, 46AD3d 1002, 1003 [2007]; Matterof Sterling v Dennison, 38 AD3d 1145 [2007]). However, the Board also properlyconsidered the violent nature of petitioner's crime, which involved stabbing the victim multipletimes and then setting the body ablaze. Inasmuch as petitioner has failed to demonstrate that theBoard's decision was irrational to the point of impropriety, we decline to disturb it (see Matter of Garofolo v Dennison, 53AD3d 734, 735 [2008]). Petitioner's remaining contentions, including that Executive Law§ 259-i creates an entitlement to release or parole subject to due process protection, havenot been preserved for our review.
Mercure, J.P., Peters, Lahtinen, Stein and McCarthy, JJ., concur. Ordered that the judgmentis affirmed, without costs.