| Matter of Davis v Lemons |
| 2010 NY Slip Op 04294 [73 AD3d 1354] |
| May 20, 2010 |
| Appellate Division, Third Department |
| In the Matter of Claude Davis Jr., Appellant, v Henry Lemons Jr.,as Acting Chair of the Division of Parole, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Zianab A. Chaudhry of counsel), forrespondent.
Appeal from a judgment of the Supreme Court (Ceresia Jr., J.), entered July 1, 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 pleaded guilty to one count of identity theft in the first degree in satisfaction ofnumerous charges that he bilked various individuals out of money or property. He was sentencedas a second felony offender to a prison term of 3 to 6 years and made his first appearance beforethe Board of Parole in 2008. The Board denied his application and ordered him held for anadditional 24 months. When petitioner did not receive a timely response to his administrativeappeal, he commenced the present CPLR article 78 proceeding. Supreme Court dismissed thepetition and this appeal ensued.
We now affirm. The Board considered the relevant factors in denying petitioner's applicationfor parole, including the nature of the offense and his disciplinary record, receipt of an earnedeligibility certificate and postrelease plans (see Executive Law § 259-i [2] [c][A];Matter of Hall v New York State Div.of Parole, 66 AD3d 1322, 1322 [2009]; Matter of Hopkins v New York State Bd. of Parole, 51 AD3d1311, 1312 [2008]). The Board was not required to accord equal weight to each factor,however, and we cannot say that its decision to accord greater [*2]weight to petitioner's extensive criminal history was in any wayirrational (see Matter of Allis v NewYork State Div. of Parole, 68 AD3d 1309, 1309-1310 [2009]; Matter of Hall v NewYork State Div. of Parole, 66 AD3d at 1322).
Lastly, the Board failed to consider petitioner's sentencing minutes, but a review of theminutes discloses that no recommendations were made with respect to parole at sentencing and,accordingly, the failure was harmless error (see Matter of Cruz v Alexander, 67 AD3d 1240, 1241 [2009]; Matter of Valerio v New York State Div.of Parole, 59 AD3d 802, 803 [2009]).
Cardona, P.J., Peters, Lahtinen, Stein and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed, without costs. [Prior Case History: 24 Misc 3d 1242(A), 2009 NY Slip Op51848(U).]