| Matter of Comfort v New York State Div. of Parole |
| 2009 NY Slip Op 09115 [68 AD3d 1295] |
| December 10, 2009 |
| Appellate Division, Third Department |
| In the Matter of Larry J. Comfort, Appellant, v New York StateDivision of Parole et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Frank Brady of counsel), forrespondents.
Rose, J.P. Appeal from a judgment of the Supreme Court (Cahill, J.), entered December 9,2008 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.
Petitioner is currently serving an aggregate prison term of 21� years to life arising out of his1982 convictions for various drug offenses and attempted escape in the first degree. Followingpetitioner's December 2007 appearance before the Board of Parole, his request for parole wasdenied and the Board ordered him held for an additional 24 months. When petitioner did notreceive a response to his administrative appeal, he commenced this CPLR article 78 proceedingchallenging the Board's determination. Supreme Court dismissed the petition and this appealfollowed.
We affirm. The record demonstrates that the Board appropriately considered the statutoryfactors, including the seriousness of petitioner's crimes, his prior criminal history, positiveprogram achievements while incarcerated and postrelease plans (see Executive Law§ [*2]259-i [2] [c]; Matter of Valerio v New York State Div. of Parole, 59 AD3d 802,803 [2009]; Matter of Brower vAlexander, 57 AD3d 1060, 1060 [2008], lv denied 12 NY3d 707 [2009]). TheBoard was not required to specifically articulate all of those factors in its decision, nor was itobliged to accord equal weight to each factor (see Matter of Brower v Alexander, 57AD3d at 1060; Matter of Blasich v NewYork State Bd. of Parole, 48 AD3d 1029, 1029-1030 [2008]). Moreover, the Board diddiscuss several statutory factors in its decision and adequately explained its reasoning (see Matter of Mendez v New York StateBd. of Parole, 20 AD3d 742, 743 [2005]; cf. Matter of Vaello v Parole Bd. Div. of State of N.Y., 48 AD3d1018, 1019-1020 [2008]). While the dissent minimizes the seriousness of petitioner'soffenses, describing them as "neither violent nor accompanied by a history of . . .violent crimes," the record before the Board shows that petitioner had been a drug dealer for 10years and that his activities escalated to high-level cocaine trafficking that did, in fact, directlylead to the violent death of one police officer and the grievous wounding of another at the handsof his codefendant brother. Contrary to the dissent's view, the Board could reach its conclusionafter weighing petitioner's accomplishments in prison against the level of violence associatedwith such drug trafficking and the crimes of which he was convicted without improperlyconsidering matters outside the record.
In any event, our role is not to assess whether the Board gave the proper weight to therelevant factors, but only whether the Board followed the statutory guidelines and rendered adetermination that is supported, and not contradicted, by the facts in the record. Nor could weeffectively review the Board's weighing process, given that it is not required to state each factorthat it considers, weigh each factor equally or grant parole as a reward for exemplaryinstitutional behavior (see Matter ofMarziale v Alexander, 62 AD3d 1227, 1227 [2009]; Matter of Barnes v New York State Div. of Parole, 53 AD3d 1012,1012 [2008]; Matter of Valderrama vTravis, 19 AD3d 904, 905 [2005]). Accordingly, as the Board's determination here issupported by the record and does not display " 'irrationality bordering on impropriety,' " wedecline to disturb it (Matter of Silmon v Travis, 95 NY2d 470, 476 [2000], quotingMatter of Russo v New York State Bd. of Parole, 50 NY2d 69, 77 [1980]).
Petitioner's remaining contention, that the Board's decision amounted to resentencing, iswithout merit (see Matter of Marsh vNew York State Div. of Parole, 31 AD3d 898, 898 [2006]).
Kane and McCarthy, JJ., concur.
Garry, J. (dissenting). We respectfully dissent. Petitioner, now age 59, is currently servingthe 28th year of an aggregate sentence of 21½ years to life arising out of his convictionsfor one count of criminal sale of a controlled substance in the first degree, one count of criminalpossession of a controlled substance in the first degree, and one count of attempted escape in thefirst degree.[FN1]Prior to [*3]these convictions in 1982, petitioner's criminalhistory consisted of convictions for resisting arrest, attempted criminal sale of a controlledsubstance in the fourth degree (fireworks), and attempted aggravated harassment. Petitioner hasbeen denied parole release six times, each time based on the seriousness of his offenses.
As noted by the majority, the Board of Parole is afforded significantly broad discretion. TheBoard is not required to give equal weight to the statutory factors, nor articulate each factor in itsdecision (see e.g. Matter of Friedgood vNew York State Bd. of Parole, 22 AD3d 950, 950 [2005]), and it is permissible for theBoard to emphasize the seriousness of a petitioner's offense (see Matter of Trobiano v Stateof N.Y. Div. of Parole, 285 AD2d 812, 813 [2001], lv denied 97 NY2d 607 [2001]).Nonetheless, the Board is required to consider the factors set out in Executive Law § 259-i(2) (c) (A), specifically including the seriousness of a petitioner's crimes, his or her previouscriminal history, disciplinary record in prison, positive program achievements whileincarcerated, and plans after release (seeMatter of Valerio v New York State Div. of Parole, 59 AD3d 802, 803 [2009]; Matter of Brower v Alexander, 57AD3d 1060, 1060 [2008], lv denied 12 NY3d 707 [2009]). When denying parole,the Board is statutorily required to give its reasons "in detail and not in conclusory terms"(Executive Law § 259-i [2] [a] [i]). We disagree with the majority's view that thisrequirement was met here, so as to permit this Court to adequately fulfill its responsibility ofreviewing the determination.
The Board noted that the 1980 incident involved a large amount of cocaine. However, unlikemany other cases in which the Board has relied primarily on the seriousness of an offender'scrimes in denying parole, petitioner's crimes were neither violent nor accompanied by a historyof other serious or violent crimes (cf.Matter of MacKenzie v Dennison, 55 AD3d 1092, 1092 [2008] [crimes related to thefatal shooting of a police officer]; Matter of Motti v Alexander, 54 AD3d 1114, 1115 [2008] [twocounts of murder in the second degree]; Matter of Montalvo v New York State Bd. of Parole, 50 AD3d1438, 1438-1439 [2008] [manslaughter in the first degree and reckless endangerment in thefirst degree]; Matter of Gardiner v NewYork State Div. of Parole, 48 AD3d 871, 872 [2008] [robbery, attempted robbery, andmanslaughter in the first degree]; Matter of Schettino v New York State Div. of Parole, 45 AD3d1086, 1086 [2007] [murder in the second degree]). The record further reveals that, whileincarcerated, petitioner has maintained a perfect disciplinary record for at least 15 years, hascompleted all of the recommended programs required by the Department of CorrectionalServices, overcome drug and alcohol addictions, participated in Alcoholics Anonymous for over20 years and acted as its chair, worked in a youth assistance program to help others avoidsubstance abuse issues, been active in ministerial services, and participated in numerousvocational and educational programs. Petitioner's postrelease plans include participation in aveterans' transitional employment program and volunteering in programs for substance abusers.There was no inquiry during petitioner's interview regarding his remorse,[FN2]but when he was given an opportunity to speak, he stated, in part, "I would like you to know thatI'm sorry for everybody that I've hurt. I know that [*4]my drugdealing has caused a lot of pain and a lot of suffering." He explained that, although his druginvolvement began while he was serving in the Vietnam War, he did not blame the war for hisactions and understood the seriousness of his offenses.
While parole release is not to "be granted merely as a reward for good conduct or efficientperformance of duties while confined" (Executive Law § 259-i [2] [c] [A]; see Matterof Guerin v New York State Div. of Parole, 276 AD2d 899, 900 [2000]), the Board has nowdenied parole release to petitioner six times based on the "unchangeable factor" of the nature ofhis crimes (Matter of Trobiano v State of N.Y. Div. of Parole, 285 AD2d at 813).Notably, the Board has twice been directed to conduct a de novo hearing, as it was establishedthat the Board had improperly considered and relied upon convictions that had beensubsequently reversed upon appeal by the Appellate Division, Fourth Department (People vComfort, 113 AD2d 420, 425 [1985], lv denied 67 NY2d 760 [1986]). Though theBoard gave fleeting acknowledgment to statutory factors other than the seriousness ofpetitioner's offense, a strong inference arises upon this record that the Board may have againbeen improperly influenced by "factors outside the scope of the applicable statute" (Matter ofKing v New York State Div. of Parole, 83 NY2d 788, 791 [1994]). While the determinationunder review includes no explicit reference to the reversed convictions, in light of the lack ofdetail provided, the history of petitioner's prior appearances, the extensive evidence of hisrehabilitation and remorse, the cursory nature of the Board's acknowledgment of these factors,and the absence of record support for its conclusion that petitioner is likely to reoffendcumulatively render the decision "so irrational under the circumstances as to border onimpropriety" (Matter of Friedgood v New York State Bd. of Parole, 22 AD3d at 951;see Matter of Silmon v Travis, 95 NY2d at 476; Matter of Russo v New York StateBd. of Parole, 50 NY2d 69, 77 [1980]).
For these reasons, we would reverse and remit the matter to the Board for a new hearing.
Stein, J., concurs.
Ordered that the judgment is affirmed, without costs.
Footnote 1: Petitioner escaped from jailwhile awaiting trial but turned himself in almost immediately. He was sentenced to a prison termof 1½ to 3 years on the attempted escape conviction, to run consecutively to his concurrentprison terms of 15 years to life on the drug possession conviction and 20 years to life on the drugsale conviction. Applications for resentencing were denied in 2001 and 2005, and the 2005denial was affirmed on appeal (People vComfort, 56 AD3d 1217 [2008]).
Footnote 2: "[T]here is a strongrehabilitative component in the statute that may be given effect by considering remorse andinsight" (Matter of Silmon v Travis, 95 NY2d 470, 477 [2000]).