| Matter of Williams v New York State Div. of Parole |
| 2010 NY Slip Op 00768 [70 AD3d 1106] |
| February 4, 2010 |
| Appellate Division, Third Department |
| In the Matter of James Williams, 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 (Egan, Jr., J.), entered July 30, 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 serving an aggregate prison sentence of 25 years to life for his 1976 convictionsof, among other things, attempted murder in the first degree and assault in the first degree. InMarch 2008, petitioner made his fifth appearance before the Board of Parole seeking parolerelease. The Board denied his request and ordered him held for an additional 24 months. Uponreceiving no response to his administrative appeal, petitioner commenced this CPLR article 78proceeding seeking to annul the Board's decision. Supreme Court dismissed petitioner'sapplication, prompting this appeal.
We affirm. Initially, although the Board is required to consider his sentencing minutes inmaking its determination (see Executive Law § 259-i), we reject petitioner'scontention that the failure of the Board to consider the minutes, under these circumstances,deprived him of a fair hearing. The record reflects that the Board requested the minutes, but wasinformed, through correspondence in the record from the sentencing court, that the minutescannot be found. Inasmuch as the unavailability of the sentencing minutes is adequatelyestablished in the record, [*2]the Board's inability to considerthem did not render its decision irrational to the point of impropriety (see Matter of Blasich v New York StateBd. of Parole, 68 AD3d 1339, 1340 [2009]; Matter of Freeman v Alexander, 65 AD3d 1429, 1430 [2009]).
The hearing transcript establishes that the Board considered the remaining statutory factorsset forth in Executive Law § 259-i in making its decision, including the seriousness ofpetitioner's crimes, his criminal history, institutional record, program accomplishments andpostrelease plans (see Matter ofMacKenzie v Dennison, 55 AD3d 1092, 1092 [2008]; Matter of Fransua v Alexander, 52AD3d 1140, 1141 [2008]). Contrary to petitioner's contention, the Board is required toconsider the same factors each time he appears before it (see Executive Law §259-i [2] [c] [A]). Further, the Board "need not enumerate, give equal weight to or explicitlydiscuss every factor considered" (Matter of Barnes v New York State Div. of Parole, 53 AD3d 1012,1012 [2008] [internal quotation marks and citations omitted]; see Matter of Abbas v New York State Div. of Parole, 61 AD3d1228, 1228-1229 [2009]) and may place a greater emphasis on the seriousness of his crime(see Matter of Karlin v Alexander,57 AD3d 1156, 1157 [2008], lv denied 12 NY3d 704 [2009]).
We have examined petitioner's remaining contentions, including that his rights to dueprocess and equal protection were violated, and find them to be without merit. Accordingly, thedetermination will not be disturbed.
Cardona, P.J., Peters, Malone Jr., Stein and McCarthy, JJ., concur. Ordered that thejudgment is affirmed, without costs.