Matter of Evans v Dennison

2010 NY Slip Op 05840 [75 AD3d 711]

July 1, 2010

Appellate Division, Third Department

As corrected through Wednesday, September 1, 2010

In the Matter of Bryant Evans, Appellant, v Robert Dennison, asChair of the Division of Parole, Respondent.

—[*1]Bryant Evans, Rome, appellant pro se.

Andrew M. Cuomo, Attorney General, Albany (Sania W. Khan of counsel), forrespondent.

Appeal from a judgment of the Supreme Court (Feldstein, J.), entered November 18, 2009 inFranklin County, which dismissed petitioner's application, in a proceeding pursuant to CPLRarticle 78, to review a determination of the Board of Parole denying his request for parolerelease.

In 1983, petitioner was convicted of manslaughter in the first degree, criminal possession ofa weapon in the second degree and criminal possession of a weapon in the third degree. He wassentenced, respectively, to prison terms of 81/3 to 25 years, 5 to 15 years and21/3 to 7 years, with the first and third sentences ordered to run consecutive toeach other and concurrent with the second sentence. In January 2009, petitioner appeared beforethe Board of Parole, which denied his request for parole release and ordered him held anadditional 24 months. He thereafter commenced this CPLR article 78 proceeding challenging theBoard's determination. Following joinder of issue, Supreme Court dismissed the petition, andpetitioner now appeals.

We affirm. The crux of petitioner's argument is that the Board failed to consider the parolerecommendations contained in his sentencing minutes in denying him parole release. We notethat, while the Board did not make specific mention of the sentencing minutes in rendering itsdetermination, the record demonstrates that the minutes were before the Board, which is notrequired to specifically articulate each factor it has considered (see Matter of Serrano v [*2]Alexander, 70 AD3d 1099, 1100 [2010]; Matter of LaSalle v New York State Div.of Parole, 69 AD3d 1252, 1253 [2010], lv denied 14 NY3d 709 [2010]). In anyevent, even had the Board failed to review the minutes, such error would have been harmlessgiven that our review reveals that no parole recommendation was made (see Matter of Ruiz v New York State Div.of Parole, 70 AD3d 1162, 1163 [2010]; Matter of Cruz v Alexander, 67 AD3d 1240, 1241 [2009]).

Petitioner's remaining contentions have been examined and determined to be without merit.

Mercure, J.P., Rose, Malone Jr., McCarthy and Egan Jr., JJ., concur. Ordered that thejudgment is affirmed, without costs.