| Matter of LaSalle v New York State Div. of Parole |
| 2010 NY Slip Op 00606 [69 AD3d 1252] |
| January 28, 2010 |
| Appellate Division, Third Department |
| In the Matter of Samuel LaSalle, Appellant, v New York StateDivision of Parole, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Frank Brady of counsel), forrespondent.
Appeal from a judgment of the Supreme Court (Cahill, J.), entered February 20, 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.
In 1980, petitioner was sentenced to an aggregate prison term of 20 years to life for hisconvictions for murder in the second degree and criminal possession of a weapon in the seconddegree, arising from an incident in which he shot his estranged wife in the chest, causing herdeath. In March 2008, petitioner made his seventh appearance before the Board of Parole forparole release. His request was denied and he was ordered to be held for an additional 24months. When a timely response to his administrative appeal was not forthcoming, petitionercommenced this CPLR article 78 proceeding. Supreme Court dismissed the petition, promptingthis appeal.
While the Board is generally required to consider sentencing minutes in determining whetherto grant an inmate parole, when those minutes are unavailable, its failure to do so does notmandate a new hearing (see Executive Law § 259-i [1] [a]; [2] [c] [A]; Matter of Blasich v New York State Bd. ofParole, 68 AD3d 1339, 1340-1341 [2009]; Matter of Freeman v Alexander, 65 AD3d 1429, 1430 [2009]; Matter of Cartagena v Alexander, 64AD3d 841, 841-842 [2009]). Here, the Board stated on the record that it had made diligentefforts to [*2]obtain petitioner's sentencing minutes but wasunable to do so and the record contains notice from Supreme Court, Kings County, that thesentencing minutes could not be located. Further, while there is no indication that a favorableparole recommendation was made beyond petitioner's assertion that the sentencing court made afavorable recommendation that he serve only the minimum sentence if he were a model prisoner,the Board stated that it would consider that recommendation. Therefore, it cannot be said that theBoard's inability to consider the minutes rendered its decision "irrational so as to border onimpropriety" (Matter of Freeman v Alexander, 65 AD3d at 1430; see Matter of Abbas v New York StateDiv. of Parole, 61 AD3d 1228, 1228 [2009]).
We also find without merit petitioner's argument that the Board relied solely on the nature ofhis crime in reaching its decision. While the Board did place particular emphasis upon theheinous and violent nature of petitioner's crime, it also took note of his programmatic andeducational accomplishments, his release plans, the disciplinary infraction he committed sincehis last appearance, his expressions of remorse and the recommendation of the sentencing court.Thus, the Board considered the appropriate statutory factors and was neither required tospecifically discuss every factor it considered nor give them equal weight (see Matter ofAbbas v New York State Div. of Parole, 61 AD3d at 1228-1229; Matter of Karlin v Alexander, 57AD3d 1156, 1156-1157 [2008], lv denied 12 NY3d 704 [2009]).
Petitioner's remaining contentions have been examined and found to be without merit.
Mercure, J.P., Spain, Malone Jr., Stein and Garry, JJ., concur. Ordered that the judgment isaffirmed, without costs.