| Matter of Nicoletta v New York State Div. of Parole |
| 2010 NY Slip Op 05313 [74 AD3d 1609] |
| June 17, 2010 |
| Appellate Division, Third Department |
| In the Matter of Francesco Nicoletta, Appellant, v New York StateDivision of Parole, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Kate H. Nepvue of counsel), forrespondent.
Appeal from a judgment of the Supreme Court (Feldstein, J.), entered September 29, 2009 inSt. Lawrence County, which dismissed petitioner's application, in a proceeding pursuant toCPLR article 78, to review a determination of the Board of Parole denying petitioner's requestfor parole release.
In 1994, petitioner was convicted of two counts of attempted murder in the second degreeand was sentenced to consecutive terms of 5 to 15 years in prison. In September 2008, he madehis third appearance before the Board of Parole seeking parole release. At the conclusion of thehearing, his request was denied and he was ordered held until his reappearance date in July 2010.Petitioner pursued an administrative appeal and, when a decision was not forthcoming withinfour months, he commenced this CPLR article 78 proceeding. Following service of respondent'sanswer, Supreme Court dismissed the petition and this appeal ensued.
Parole release decisions are discretionary and will not be disturbed so long as the statutoryrequirements of Executive Law § 259-i are satisfied (see Matter of Wright v Alexander, 71 AD3d 1270, 1271 [2010]; 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 Gonzalez v Chair, N.Y. StateBd. of Parole, 72 AD3d 1368, 1369 [2010]). Here, the record discloses that, in denying[*2]petitioner's request for parole release, the Board properlytook into account the nature of petitioner's crime, his prison programming, his prison disciplinaryrecord and his postrelease plans.
Contrary to petitioner's contentions, the record does not demonstrate that the Boardimproperly assumed that petitioner knew that one of his victims was an off-duty police officer,or that he had been convicted of attempted murder in the first degree. We also find no error inthe Board's consideration of the serious injuries that petitioner inflicted on his victims despite thefact that injury was not an element of his crimes. Indeed, the Board may consider the nature andseverity of his offense, including the facts underlying petitioner's convictions, in determiningwhether his release would be compatible with the welfare and safety of the community (see Matter of Williams v Alexander,71 AD3d 1264, 1265 [2010]; Matter of LaSalle v New York State Div. of Parole, 69 AD3d1252, 1253 [2010], lv denied 14 NY3d 709 [2010]).
Finally, petitioner's challenge on the ground that the Board failed to consider his sentencingminutes or to make diligent efforts to locate them is not preserved for our review in thatpetitioner failed to raise the issue on administrative appeal (see Matter of Cruz v Travis,273 AD2d 648, 649 [2000]). Although petitioner's appeal was not timely decided, therebysatisfying his duty to exhaust administrative remedies (see 9 NYCRR 8006.4 [c]), he wasstill obligated to raise the issue to preserve it for judicial review. Accordingly, inasmuch as theBoard considered the appropriate factors and its decision does not exhibit "irrationality borderingon impropriety" (Matter of Russo v New York State Bd. of Parole, 50 NY2d 69, 77[1980]), we will not disturb it.
Mercure, J.P., Spain, Malone Jr., Stein and Egan Jr., JJ., concur. Ordered that the judgmentis affirmed, without costs.