| Matter of Matul v Chair of N.Y. State Bd. of Parole |
| 2010 NY Slip Op 00442 [69 AD3d 1196] |
| January 21, 2010 |
| Appellate Division, Third Department |
| In the Matter of Jose Matul, Appellant, v Chair of New York StateBoard of Parole, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Marlene O. Tuczinski of counsel), forrespondent.
Appeal from a judgment of the Supreme Court (McNamara, J.), rendered July 16, 2009 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.
Petitioner was convicted in 1993 of arson in the first degree and was sentenced to 15 years tolife in prison. In January 2008, he made his second appearance before the Board of Paroleseeking parole release. At the conclusion of the hearing, the Board denied his request. Aftertaking an administrative appeal, petitioner commenced this CPLR article 78 proceedingchallenging the Board's determination. Following joinder of issue, Supreme Court dismissed thepetition and petitioner now appeals.
We affirm. Contrary to petitioner's claim, the record discloses that the Board considered theappropriate statutory factors, including the seriousness of petitioner's crime, his prisondisciplinary record, postrelease plans and possible deportation, in denying his request for parolerelease (see Executive Law § 259-i [2] [c] [A]; Matter of Hunter v New York State Div. of Parole, 21 AD3d 1178,1178 [2005]). Notably, the Board was entitled to place greater emphasis on the serious nature ofthe crime than on the other statutory factors and was not required to articulate every factorconsidered in making its determination (see Matter of Karlin v Alexander, 57 AD3d 1156, 1157 [2008],lv denied 12 NY3d 704 [2009]; Matter of Garofolo v Dennison, 53 AD3d 734, 734-735 [2008]).Moreover, although petitioner criticizes the Board's failure to consider the sentencing minutes,they were unavailable, and proof in the record reveals that a diligent effort to obtain them hadbeen made. In view of this, and given the absence of documentation indicating that anyparticular parole recommendation was made, the Board's failure to consider the minutes is not abasis for annulling its determination (see Matter of Blasich v New York State Bd. of Parole, 68 AD3d1339, 1340 [2009]; Matter ofFreeman v Alexander, 65 AD3d 1429, 1430 [2009]; see also Matter of Porter v Alexander, 63 AD3d 945, 946 [2009]).Petitioner's remaining contentions have been considered and are unpersuasive. Accordingly,inasmuch as the Board's determination does not exhibit " 'irrationality bordering on impropriety'" (Matter of Silmon v Travis, 95 NY2d 470, 476 [2000], quoting Matter of Russo vNew York State Bd. of Parole, 50 NY2d 69, 77 [1980]), we find no reason to disturb it.
Mercure, J.P., Kavanagh, Stein, McCarthy and Garry, JJ., concur. Ordered that the judgmentis affirmed, without costs.