| Matter of Restivo v New York State Bd. of Parole |
| 2010 NY Slip Op 00761 [70 AD3d 1096] |
| February 4, 2010 |
| Appellate Division, Third Department |
| In the Matter of Andrew Restivo, Appellant, v New York StateBoard of Parole, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Julie M. Sheridan of counsel), forrespondent.
Appeal from a judgment of the Supreme Court (McGrath, J.), entered August 6, 2009 inAlbany County, which dismissed petitioner's application, in a proceeding pursuant to CPLRarticle 78, to review a determination of respondent denying petitioner's request for parole release.
Petitioner is currently serving an aggregate prison sentence of 25 years to life for his 1982conviction of murder in the second degree, two counts of burglary in the first degree and grandlarceny in the second degree. After his 1982 conviction, petitioner was extradited to Nevadawhere he was convicted in federal court of bank robbery in 1983. While appealing his federalconviction, petitioner participated in an escape attempt from a federal penitentiary in California,during which a correction officer was killed. Petitioner was thereafter convicted in federal courtof aiding and abetting manslaughter and was sentenced to 10 years in prison, to run consecutiveto his New York sentence.
In May 2008, petitioner made his second appearance before respondent seeking parolerelease. Respondent denied his request and ordered him held for an additional 24 months. Uponreceiving no timely response to his administrative appeal, petitioner commenced this CPLRarticle 78 proceeding seeking to annul respondent's decision. Supreme Court dismissedpetitioner's application, prompting this appeal.
We affirm. The record demonstrates that respondent considered all of the proper statutoryfactors in denying petitioner's request for parole release, including the seriousness of [*2]petitioner's crimes, his criminal history, program achievementswhile incarcerated, positive disciplinary record and his postrelease plans (see ExecutiveLaw § 259-i [2] [c]; Matter ofValerio v New York State Div. of Parole, 59 AD3d 802, 803 [2009]). Althoughpetitioner contends that there was erroneous information in his inmate status report concerninghis bank robbery conviction, there is nothing in the record to indicate that this alleged erroneousinformation served as a basis for the denial of his parole release (see Matter of Richburg vNew York State Bd. of Parole, 284 AD2d 685, 686 [2001], appeal dismissed and lvdenied 97 NY2d 636 [2001]; Matter of Morel v Travis, 278 AD2d 580, 581 [2000],appeal dismissed and lv denied 96 NY2d 752 [2001]; compare Matter of Lewis v Travis, 9 AD3d 800 [2004]). Giventhat respondent's decision does not reflect " 'irrationality bordering on impropriety' " (Matterof Silmon v Travis, 95 NY2d 470, 476 [2000], quoting Matter of Russo v New YorkState Bd. of Parole, 50 NY2d 69, 77 [1980]), we decline to disturb it. Petitioner's remainingcontentions have been considered and determined to be without merit.
Cardona, P.J., Rose, Lahtinen, Malone Jr. and Garry, JJ., concur. Ordered that the judgmentis affirmed, without costs.