| Matter of Smith v New York State Div. of Parole |
| 2009 NY Slip Op 05901 [64 AD3d 1030] |
| July 16, 2009 |
| Appellate Division, Third Department |
| In the Matter of Anthony Smith, Appellant, v New York StateDivision of Parole, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Frank Brady of counsel), forrespondent.
Appeal from a judgment of the Supreme Court (McNamara, J.), entered December 29, 2008in Albany 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 1989 convictionof kidnapping in the first degree. Petitioner made his third appearance before the Board of Parolein August 2007 and, at the conclusion of the hearing, the Board denied petitioner's request forrelease and ordered him held for an additional 24 months. Upon receiving no response to hisadministrative appeal, petitioner commenced this CPLR article 78 proceeding seeking to annulthe Board's determination. Supreme Court dismissed petitioner's application, prompting thisappeal.
Contrary to petitioner's assertion, the record reflects that in denying his request for parolerelease, the Board considered the relevant statutory factors set forth in Executive Law §259-i, including the serious nature of petitioner's crime and his prison disciplinary record,program accomplishments and postrelease plans (see Matter of MacKenzie v Dennison, 55 AD3d 1092 [2008]; Matter of Berry v New York State Div. ofParole, 50 AD3d 1346 [2008]). In this regard, it is well settled that "the Board is notrequired to give each factor equal weight and was [*2]free toemphasize the serious nature of the instant offense" (Matter of Berry v New York State Div.of Parole, 50 AD3d at 1346; seeMatter of Barnes v New York State Div. of Parole, 53 AD3d 1012 [2008]). Similarly,the record as a whole does not support petitioner's claims that he was denied a fair hearing andthat the hold imposed was either excessive (see Matter of Williams v New York State Div. of Parole, 23 AD3d800, 801 [2005]) or constituted an unauthorized resentencing (see Matter of Borcsok v New York StateDiv. of Parole, 34 AD3d 961, 962 [2006], lv denied 8 NY3d 803 [2007]).
We reach a contrary conclusion, however, as to the Board's failure to consider the sentencingminutes—apparently due to an inability to locate them. On appeal, respondent concedesand our review of the record confirms that the unavailability of those minutes was not adequatelyestablished. Accordingly, we reverse Supreme Court's judgment and remit this matter to theBoard for a de novo hearing at which the sentencing minutes, if available, are to be considered,together with any recommendations that may have been made by the sentencing court (see Matter of Carter v Dennison, 42AD3d 779 [2007]; Matter of Lovellv New York State Div. of Parole, 40 AD3d 1166, 1167 [2007]; Matter of Standley v New York State Div.of Parole, 34 AD3d 1169, 1170-1171 [2006]). Petitioner's remaining contentions, to theextent not specifically addressed, have been examined and found to be lacking in merit.
Cardona, P.J., Peters, Lahtinen, Malone Jr. and McCarthy, JJ., concur. Ordered that thejudgment is reversed, on the law, without costs, and matter remitted to the Board of Parole whichis directed to obtain petitioner's sentencing minutes, if available, and the recommendations of thesentencing court, if any, within 30 days of this Court's decision and to conduct a de novo hearingwithin 45 days of the date thereof.