| Matter of Gonzalez v Chair, N.Y. State Bd. of Parole |
| 2010 NY Slip Op 03204 [72 AD3d 1368] |
| April 22, 2010 |
| Appellate Division, Third Department |
| In the Matter of Wilfredo Gonzalez, Appellant, v Chair, New YorkState Board of Parole, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Kate H. Nepveu of counsel), forrespondent.
Appeal from a judgment of the Supreme Court (McDonough, J.), entered June 29, 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 was convicted in 1983 of the crime of murder in the second degree and wassentenced to 20 years to life in prison. In June 2008, he appeared before the Board of Paroleseeking parole release. At the conclusion of the hearing, the Board denied his request andordered him held an additional 24 months. Petitioner took an administrative appeal and, when hedid not receive a response within four months, he commenced this CPLR article 78 proceeding.Following joinder of issue, Supreme Court dismissed the petition and this appeal ensued.
We affirm. Initially, we note that parole release decisions are discretionary and will not bedisturbed so long as the Board complies with the requirements set forth in Executive Law§ 259-i (see Matter of Allis vNew York State Div. of Parole, 68 AD3d 1309, 1309 [2009]; Matter of Veras v New York State Div. ofParole, 56 AD3d 878, 879 [2008]). The Board is not required to articulate everystatutory factor considered in making its decision or to give each such factor equal weight(see Matter of Veras v New York State Div. of Parole, 56 AD3d at 879; Matter of Motti v Alexander, 54 AD3d1114, 1115 [2008]). Contrary to petitioner's claim, the record [*2]discloses that the Board did not base its decision solely upon theserious nature of the crime. While the Board was entitled, as it did, to accord this factor greaterweight (see Matter of MacKenzie vDennison, 55 AD3d 1092, 1092 [2008]; Matter of Wise v New York State Div. of Parole, 54 AD3d 463,464 [2008]), it also considered the recommendations of the sentencing judge, petitioner's cleandisciplinary record, his program accomplishments and his postrelease plans (seeExecutive Law § 259-i [1] [a]; [2] [c]). Thus, we cannot conclude that the Board's decisionexhibits " 'irrationality bordering on impropriety' " (Matter of Silmon v Travis, 95 NY2d470, 476 [2000], quoting Matter of Russo v New York State Bd. of Parole, 50 NY2d 69,77 [1980]). We have considered petitioner's remaining contentions, including his claim that theBoard's decision amounts to resentencing, and find them to be without merit (see Matter of Borcsok v New York StateDiv. of Parole, 34 AD3d 961, 962 [2006], lv denied 8 NY3d 803 [2007]).Therefore, we discern no reason to disturb the Board's decision.
Peters, J.P., Lahtinen, Stein, McCarthy and Egan Jr., JJ., concur. Ordered that the judgmentis affirmed, without costs.