| Matter of Serrano v Alexander |
| 2010 NY Slip Op 00764 [70 AD3d 1099] |
| February 4, 2010 |
| Appellate Division, Third Department |
| In the Matter of Fernando Serrano, Appellant, v George Alexander,as Chair of the New York State 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 (McNamara, J.), entered July 8, 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 is currently serving a prison sentence of 15 years to life upon his 1987 convictionof murder in the second degree. He made his fourth appearance before the Board of Parole inMay 2008 and, at the conclusion of the hearing, the Board denied petitioner's request for releaseand ordered him held an additional 24 months. When petitioner failed to receive a timelyresponse to his administrative appeal, he commenced this CPLR article 78 proceeding.Following joinder of issue, Supreme Court dismissed the petition, prompting this appeal.
We affirm. The record discloses that, contrary to petitioner's contention, the Board did notsolely base its decision on the seriousness of his underlying crime. Rather, the Board consideredthe pertinent factors set forth in Executive Law § 259-i in making its decision, includingpetitioner's lack of a criminal history, his institutional record, his program accomplishments andhis postrelease plans (see Matter ofSmith v New York State Div. of Parole, 64 AD3d 1030, 1031 [2009]). The Board "neednot enumerate, give equal weight or explicitly discuss every factor considered" (Matter ofBarnes v New York State Div. of Parole, [*2]53 AD3d 1012,1012 [2008] [internal quotation marks and citations omitted]; accord Matter of Marziale v Alexander, 62 AD3d 1227, 1227[2009]) and was entitled, as it did here, to place a greater emphasis on the gravity of his crime(see Matter of Karlin v Alexander,57 AD3d 1156, 1157 [2008], lv denied 12 NY3d 704 [2009]). Accordingly,inasmuch as the Board's decision 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 decline to disturb it.
Mercure, J.P., Rose, Lahtinen, Stein and McCarthy, JJ., concur. Ordered that the judgment isaffirmed, without costs.