| Matter of Freeman v Alexander |
| 2009 NY Slip Op 06616 [65 AD3d 1429] |
| September 24, 2009 |
| Appellate Division, Third Department |
| In the Matter of Darryl L. Freeman, Appellant, v George B.Alexander, as Chair of the Division of Parole, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Paul Groenwegen of counsel), forrespondent.
Appeal from a judgment of the Supreme Court (Zwack, J.), entered September 29, 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.
In 1981, petitioner was convicted of, among other things, attempted murder in the firstdegree for which he was sentenced to 20 years to life in prison. In June 2007, he made his fourthappearance before the Board of Parole seeking parole release. The Board denied his request andordered him held for an additional 24 months. When petitioner failed to receive a timelyresponse to his administrative appeal, his administrative remedy was deemed exhausted and hecommenced this CPLR article 78 proceeding. Following joinder of issue, Supreme Courtdismissed the proceeding. Petitioner appeals asserting, among other things, that the Board'sfailure to consider the sentencing court's sentencing minutes deprived him of a fair hearing.
We affirm. Our review of the record discloses that in its denial of petitioner's request forparole release, the Board considered the appropriate statutory factors set forth in Executive Law§ 259-i with the exception of the recommendations of the sentencing court. The Board'sexplanation for not considering the sentencing court's recommendations is that the minutes frompetitioner's 1981 sentencing could not be located, a circumstance reported to petitioner duringhis parole hearing. According to correspondence in the record from the sentencing court,Supreme [*2]Court in Kings County, the minutes of petitioner'ssentencing cannot be found.
As this is not a case where the Board failed to consider sentencing minutes which wereavailable (see Matter of Lovell v NewYork 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]), we cannot say—on the recordbefore us—that the Board's inability to consider the sentencing minutes rendered itsdecision irrational so as to border on impropriety (see Matter of Cartagena v Alexander, 64 AD3d 841, 842 [2009]).Notably, petitioner does not assert, nor does the record otherwise reveal, that the sentencingcourt made any parole recommendations. The transcript of the parole hearing reflects that theBoard took into consideration, among other things, the serious nature of petitioner's underlyingcrimes, his favorable prison disciplinary record, his program and educational accomplishmentsand his postrelease plans. Accordingly, we decline to disturb the Board's decision.
We have considered petitioner's remaining contentions and find them unavailing.
Spain, J.P., Rose, Malone Jr., Kavanagh and Garry, JJ., concur. Ordered that the judgment isaffirmed, without costs.