| Matter of Hall v New York State Div. of Parole |
| 2009 NY Slip Op 07735 [66 AD3d 1322] |
| October 29, 2009 |
| Appellate Division, Third Department |
| In the Matter of Darryl Hall, Appellant, v New York State Divisionof Parole, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), forrespondent.
Appeal from a judgment of the Supreme Court (Devine, J.), entered May 4, 2009 in AlbanyCounty, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, toreview a determination of the Board of Parole denying petitioner's request for parole release.
Petitioner, sentenced as a persistent violent felony offender, is currently serving a prisonsentence of 6 years to life after his 1997 conviction of criminal possession of a weapon in thethird degree. In April 2008, petitioner made his fourth appearance before the Board of Parole andwas again denied parole release and was ordered to be held an additional 24 months. Petitionerthen commenced the instant CPLR article 78 proceeding to challenge that determination.Supreme Court dismissed his petition and this appeal ensued.
We affirm. The Board considered the relevant factors in denying petitioner parole release,including the nature of the offense, his clean disciplinary record, his programmaticachievements, his receipt of an earned eligibility certificate and his release plans (seeExecutive Law § 259-i [2] [c] [A]; Matter of Karlin v Alexander, 57 AD3d 1156, 1156-1157 [2008],lv denied 12 NY3d 704 [2009]; Matter of Pearl v New York State Div. of Parole, 25 AD3d 1058[2006]). Furthermore, contrary to petitioner's contention, the Board was not required to giveequal weight to each factor and could, as it did, ascribe greater weight to petitioner's criminalhistory (see Matter of Karlin v Alexander, 57 AD3d at 1157; Matter of Brower v Alexander, 57AD3d 1060, 1060 [2008], lv denied 12 NY3d [*2]707 [2009]; Matter of Alamo v New York State Div. of Parole, 52 AD3d 1163,1163-1164 [2008]). For these reasons, we find that the Board's decision did not evidence " '"irrationality bordering on impropriety" ' " (Matter of Sutherland v Alexander, 64 AD3d 1028, 1029 [2009],quoting Matter of Silmon v Travis, 95 NY2d 470, 476 [2000]).
We note also that petitioner's contention that the Board was bound by 9 NYCRR 8002.3 (b)is misplaced inasmuch as his minimum period of imprisonment was set by the trial court (seeMatter of Guerin v New York State Div. of Parole, 276 AD2d 899, 901 [2000]).
Petitioner's remaining contentions have been reviewed and found to be without merit.
Spain, J.P., Rose, Malone Jr., Kavanagh and Garry, JJ., concur. Ordered that the judgment isaffirmed, without costs.