| Matter of Cartagena v Alexander |
| 2009 NY Slip Op 05665 [64 AD3d 841] |
| July 2, 2009 |
| Appellate Division, Third Department |
| In the Matter of Alfredo Cartagena, Appellant, v GeorgeAlexander, as Chair of the Division of Parole, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Frank Brady of counsel), forrespondent.
Kane, J. Appeal from a judgment of the Supreme Court (Lynch, J.), entered September 17,2008 in Albany County, which dismissed petitioner's application, in a proceeding pursuant toCPLR article 78, to review a determination of the Board of Parole denying petitioner's requestfor parole release.
The facts underlying petitioner's crimes, subsequent convictions and a prior appearancebefore the Board of Parole are more fully set out in a previous decision of this Court (Matter of Cartagena v New York State Bd.of Parole, 20 AD3d 751 [2005], lv dismissed 6 NY3d 741 [2005]). The instantappeal involves petitioner's third appearance before the Board. His request was denied and, afterpetitioner's administrative appeal was deemed exhausted, he commenced this proceedingpursuant to CPLR article 78. Supreme Court dismissed the petition and this appeal ensued.
Petitioner first contends that he was deprived of a fair hearing inasmuch as the Board did notconsider the minutes from his October 1984 sentencing. Pursuant to Executive Law §259-i (1) (a) (i) and (2) (c) (A), when a sentencing court fixes the minimum sentence, the Boardis required to consider, among other items, any recommendation of the sentencing court (see Matter of McLaurin v New York StateBd. of Parole, 27 AD3d 565, 565-566 [2006], lv denied 7 [*2]NY3d 708 [2006]; Matter of Edwards v Travis, 304 AD2d576, 576 [2003]). A problem arose here because the minutes from petitioner's October 1984sentencing could not be located and, thus, reviewed by the Board. However, we find that anyprejudice was alleviated by the Board's diligent review of the materials that were available to it.The record demonstrates that the Board considered the minutes from petitioner's April 1984sentencing, pursuant to which he received his most severe sentence of 15 years to life for hisconviction for second degree murder. Notably, the October 1984 sentencing court chose toimpose petitioner's sentences consecutively to those imposed in April 1984, raising the inferencethat the sentencing minutes would not have included a favorable parole recommendation.Additionally, the Board considered petitioner's institutional record, his release plans and hisdeportation order. In light of this thorough review, we find that the Board's inability to reviewthe October 1984 sentencing minutes was harmless and, thus, we cannot say that the Board'sdecision " 'evidenced irrationality bordering on impropriety' " (Matter of Marcus v Alexander, 54AD3d 476, 476-477 [2008], quoting Matter of Romer v Dennison, 24 AD3d 866, 868 [2005], lvdenied 6 NY3d 706 [2006]).
Nor are we persuaded by petitioner's contention that the Board's determination was premisedon the erroneous belief that he used a weapon in the commission of his crimes. During thehearing, the Board unequivocally stated its understanding that petitioner was not the person whopossessed or fired the gun. The Board's decision reflects that it considered the relevant statutoryfactors, such as petitioner's satisfactory disciplinary record, program completions, letters ofsupport and release plans, but chose to place greater weight on the serious nature of petitioner'scrime, which resulted in the victim's death (see Matter of Marcus v Alexander, 54 AD3dat 476-477; Matter of Schettino v NewYork State Div. of Parole, 45 AD3d 1086, 1086 [2007]). Finally, there is no merit topetitioner's claim that the Board's decision was the result of an executive policy to deny parole toviolent felons (see Matter of Duffy vDennison, 34 AD3d 1083, 1084 [2006]; Matter of Cartagena v New York State Bd.of Parole, 20 AD3d at 752).
Cardona, P.J., Spain, Rose and Garry, JJ., concur. Ordered that the judgment is affirmed,without costs.