Matter of Geraci v Evans

2010 NY Slip Op 06744 [76 AD3d 1161]

September 30, 2010

Appellate Division, Third Department

As corrected through Wednesday, October 27, 2010

In the Matter of Sammy Geraci, Appellant, v Andrea W. Evans, asChair of the Division of Parole, Respondent.

—[*1]Sammy Geraci, Beacon, appellant pro se.

Andrew M. Cuomo, Attorney General, Albany (Frank Brady of counsel), forrespondent.

Appeal from a judgment of the Supreme Court (Cahill, J.), entered January 25, 2010 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 was convicted of manslaughter in the first degree and two counts of assault in thefirst degree in 1992, and is currently serving an aggregate prison sentence of 131/3to 40 years. After petitioner's third appearance before the Board of Parole, the Board denied hisrequest for parole release and ordered him held for an additional 24 months. Petitioner, receivingno response to his administrative appeal, commenced this CPLR article 78 proceeding tochallenge the Board's determination. Supreme Court dismissed the petition and this appealensued.

We affirm. Initially, the Board failed to consider petitioner's sentencing minutes in making itsdetermination (see Executive Law § 259-i [1] [a]). In a CPLR article 78 proceedingcommenced with regard to petitioner's second appearance before the Board, however, it wasestablished that those minutes were unavailable. Accordingly, the Board's failure to considerthose minutes does not render its decision irrational to the point of impropriety (see Matter of Williams v New York StateDiv. of Parole, 70 AD3d 1106, 1106 [2010], lv denied 14 NY3d 709 [2010]; Matter of Blasich v New York State Bd. ofParole, 68 AD3d 1339, 1340-1341 [2009], lv dismissed 14 NY3d 793 [2010]).Moreover, as the minutes were unavailable, petitioner was not entitled to a presumption that thesentencing court made a favorable parole recommendation (see Matter of Lebron v Alexander, 68 AD3d 1476, 1477 [2009]).As the transcript of the hearing [*2]reveals that the Boardconsidered all relevant factors in denying petitioner's parole request, we decline to disturb itsdecision.

Petitioner's remaining contentions, including petitioner's claim that a letter from his defenseattorney was not considered by the Board, to the extent they are properly before us, have beenconsidered and found to be wanting in merit.

Mercure, J.P., Spain, Lahtinen, Stein and Garry, JJ., concur. Ordered that the judgment isaffirmed, without costs.