| Matter of Miller v New York State Div. of Parole |
| 2010 NY Slip Op 02956 [72 AD3d 690] |
| April 6, 2010 |
| Appellate Division, Second Department |
| In the Matter of Carl Miller, Respondent, v New YorkState Division of Parole, Appellant. |
—[*1] Carl Miller, Warwick, N.Y., respondent pro se.
In a proceeding pursuant to CPLR article 78 to review a determination of the New YorkState Board of Parole dated July 28, 2008, which, after a hearing, denied the petitioner'sapplication to be released to parole, the appeal is from a judgment of the Supreme Court, OrangeCounty (McGuirk, J.), dated June 5, 2009, which granted the petition, annulled thedetermination, and remitted the matter to the New York State Division of Parole for a de novoparole hearing.
Ordered that the judgment is reversed, on the law, without costs or disbursements, thepetition is denied, the determination is confirmed, and the proceeding is dismissed on the merits.
Pursuant to Executive Law § 259-i (2) (c), the New York State Board of Parole(hereinafter the Parole Board) is required to consider a number of statutory factors indetermining whether an inmate should be released to parole (see Matter of Mitchell v New York State Div. of Parole, 58 AD3d742 [2009]). The Parole Board is not required to give equal weight to each statutory factor(see Matter of Hanson v New YorkState Bd. of Parole, 57 AD3d 994, 994-995 [2008]; Matter of Wan Zhang v Travis, 10 AD3d 828, 829 [2004]). Nor isit required specifically to articulate every factor considered (see Matter of Hardwick v Dennison, 43 AD3d 406, 407 [2007];Matter of Wan Zhang v Travis, 10 AD3d at 829). Here, the record reveals that the ParoleBoard, in making its determination, considered the petitioner's institutional record, including hisdisciplinary record, program accomplishments, academic achievements, and postrelease livingarrangements, as well as the violent circumstances of his crime, his criminal history, and hiscontinued claim of innocence (seeMatter of Mandala v Dennison, 20 AD3d 757 [2005]; Matter of Wan Zhang vTravis, 10 AD3d at 829). While the Parole Board did not expressly discuss the sentencingminutes, the record reveals that they were properly before it (see Matter of Karlin v Alexander, 57 AD3d 1156, 1157 [2008]; Matter of Johnson v Dennison, 48AD3d 1082, 1083 [2008]).
Contrary to the petitioner's contention, the Parole Board's inquiries into whether he was amember of a gang or was aware, at the time of his offense, of racial turmoil in the communitywhere the offense occurred, was not inappropriate given the circumstances of the offense. Aftergiving due consideration to the statutory factors, the Parole Board denied the petitioner'sapplication to be [*2]released to parole based on the seriousnessof the offense, the petitioner's criminal history, and his continued claim of innocence (seeMatter of Silmon v Travis, 95 NY2d 470, 477 [2000]; Matter of McLain v New YorkState Div. of Parole, 204 AD2d 456 [1994]). The Parole Board's determination was notconclusory, and the language it used in its determination was "only semantically different" fromthe Executive Law (Matter of James vChairman of N.Y. State Div. of Parole, 19 AD3d 857, 858 [2005]; see Matter of Siao-Pao v Dennison,11 NY3d 777, 778 [2008]; Matterof Silvero v Dennison, 28 AD3d 859, 859-850 [2006]). Accordingly, the Parole Board'sdetermination was in accordance with law, and it was not irrational (see Matter of Mata v Travis, 8 AD3d570 [2004]). Therefore, the petition should have been denied, the determination confirmed,and the proceeding dismissed on the merits. Prudenti, P.J., Balkin, Leventhal and Austin, JJ.,concur.