| Matter of Ruiz v New York State Div. of Parole |
| 2010 NY Slip Op 01045 [70 AD3d 1162] |
| February 11, 2010 |
| Appellate Division, Third Department |
| In the Matter of Edgar Ruiz, 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 (Connolly, J.), entered 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, who has a long criminal record, was convicted in May 2006 of two counts ofcriminal sale of a controlled substance in the fourth degree as the result of his involvement indrug sales occurring in April 2005 and January 2006. As a second felony offender, he wassentenced on each count to 3½ years in prison, to run concurrent to one another andconsecutive to a prior undischarged term of imprisonment, as well as to three years ofpostrelease supervision. In April 2008, he made his first appearance before the Board of Paroleseeking parole release. At the conclusion of the hearing, the Board denied his request andordered him held for an additional 24 months. Petitioner took an administrative appeal and, whenhe did not receive a response within four months, he commenced this CPLR article 78proceeding. Following joinder of issue, Supreme Court dismissed the petition and this appealensued.
Initially, we note that parole decisions are discretionary and will not be disturbed so long asthe Board complied with the statutory requirements of Executive Law § 259-i (see Matter of Veras v New York State Div.of Parole, 56 AD3d 878, 879 [2008]; Matter of Wise v New York State Div. of Parole, 54 AD3d 463,464 [2008]). Here, the record discloses that, in denying [*2]petitioner's request for parole release, the Board properlyconsidered relevant statutory factors, including the seriousness of petitioner's crimes, his lengthycriminal record, his numerous prison disciplinary infractions, his program accomplishments aswell as failures and his postrelease plans for residence and employment (see Matter of Smith v New York State Div.of Parole, 64 AD3d 1030, 1031 [2009]; Matter of Karlin v Alexander, 57 AD3d 1156, 1156-1157 [2008],lv denied 12 NY3d 704 [2009]). Although petitioner takes issue with the Board's failureto consider the sentencing minutes, they were unavailable at the time of the parole hearingdespite the Board's efforts to obtain them. Any error in the Board's decision to proceed with thehearing and to render a determination without the minutes was harmless given that the minuteswere before Supreme Court and do not indicate that the sentencing court made anyrecommendations with respect to parole (see Matter of Cruz v Alexander, 67 AD3d 1240 [2009]; Matter of Abbas v New York State Div. ofParole, 61 AD3d 1228, 1229 [2009]). Petitioner's challenge to the computation of his2006 sentences as running consecutive to his prior undischarged term of imprisonment was thesubject of a separate unsuccessful CPLR article 78 proceeding and, as such, is precluded by thedoctrine of collateral estoppel (see Matter of Guzman v Chairman, N.Y. State Div. ofParole, 260 AD2d 735, 735-736 [1999], lv denied 93 NY2d 812 [1999]). In sum,given that the Board's determination does not evince " '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., Malone Jr., Kavanagh, McCarthy and Garry, JJ., concur. Ordered that thejudgment is affirmed, without costs.