| Matter of Perez v Evans |
| 2010 NY Slip Op 06676 [76 AD3d 1130] |
| September 23, 2010 |
| Appellate Division, Third Department |
| In the Matter of Ometrius Perez, Appellant, v Andrea D. Evans, asChair of the Division of Parole, Respondent. |
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Appeal from a judgment of the Supreme Court (Zwack, J.), entered December 18, 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 for parolerelease.
Petitioner is serving concurrent prison sentences of 12½ years to life for his convictionof two counts of robbery in the first degree, arising from robbing two victims at gunpoint. In2008, the Board of Parole denied petitioner's second request for parole release and ordered himheld an additional 24 months, and this CPLR article 78 proceeding ensued. Supreme Courtdismissed the petition and petitioner appeals.
We affirm. The Board appropriately considered the statutory factors, such as the nature ofpetitioner's crimes and criminal record—including the fact that a grant of parole in NewYork would lead not to his release, but rather his beginning a lengthy prison sentence inConnecticut—as well as his positive program accomplishments, academic achievementsand improved institutional record. While the Board accorded more weight to the nature andseriousness of the underlying crimes and his criminal history than other relevant factors, it wasentitled to do so, and we cannot say that its determination demonstrates "irrationality borderingon impropriety" (Matter of Russo v New York State Bd. of Parole, 50 NY2d 69, 77[1980]; see Matter of [*2]Rodriguez v Alexander, 71 AD3d 1354, 1354 [2010],lv denied 15 NY3d 703 [2010]). Lastly, petitioner questions the extent to which theBoard complied with its internal procedures for documenting the Connecticut warrant, but thoseprocedures "are not promulgated pursuant to an express grant of legislative authority and do nothave the force of law" (People ex rel. MacKelvey v New York State Div. of Parole, 138AD2d 549 [1988], lv denied 72 NY2d 802 [1988]; see Matter of Bratton v New York State Bd. of Parole, 23 AD3d879, 880 [2005]).
Cardona, P.J., Spain, Lahtinen, Kavanagh and Egan Jr., JJ., concur. Ordered that thejudgment is affirmed, without costs.