| Matter of Cruz v Alexander |
| 2009 NY Slip Op 08556 [67 AD3d 1240] |
| November 19, 2009 |
| Appellate Division, Third Department |
| In the Matter of Roy Cruz, Appellant, v George Alexander, asChair of the Division of Parole, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), forrespondent.
Appeal from a judgment of the Supreme Court (Sackett, J.), entered May 7, 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 is serving an aggregate prison sentence of 20 years to life for his 1987 convictionsof murder in the second degree and criminal possession of a weapon in the second degree.Petitioner made his second appearance before the Board of Parole in October 2007, after whichthe Board denied his release and ordered him held for an additional 24 months. Petitioner,thereafter, commenced this CPLR article 78 proceeding to challenge this determination. SupremeCourt dismissed the petition, and he now appeals.
We affirm. Decisions regarding parole release are discretionary and they will not bedisturbed absent a "showing of irrationality bordering on impropriety" (Matter of Barnes vNew York State Div. of Parole, 53 AD3d 1012, 1012 [2008] [internal quotation marks andcitations omitted]; see Matter of Marziale v Alexander, 62 AD3d 1227, 1228 [2009]).Here, the record demonstrates that, contrary to petitioner's contention, the Board fully consideredhis programmatic achievements, disciplinary record, history of drug use, refusal to takeresponsibility for the crime, and the severity of the underlying offense, in reaching itsdetermination to deny him discretionary release. As such, we find that the Board appropriatelyconsidered the factors enumerated in Executive Law § 259-i (2) (c) and find no reason todisturb its decision (see Matter of Marziale v Alexander, 62 AD3d at 1227-1228;Matter of Barnes v New York State Div. of Parole, 53 AD3d [*2]at 1013). Furthermore, although it is unclear whether the Boardconsidered petitioner's sentencing minutes, a review of the minutes reveals that no parolerecommendations were made by the sentencing court and, thus, any failure to consider them washarmless error (see Matter of Abbas v New York State Div. of Parole, 61 AD3d 1228,1229 [2009]; Matter of Motti v Alexander, 54 AD3d 1114, 1115 [2008]).
Petitioner's remaining contentions have been reviewed and rejected as lacking in merit.
Mercure, J.P., Peters, Lahtinen, Stein and McCarthy, JJ., concur. Ordered that the judgmentis affirmed, without costs.