| Matter of McAllister v New York State Div. of Parole |
| 2010 NY Slip Op 08425 [78 AD3d 1413] |
| November 18, 2010 |
| Appellate Division, Third Department |
| In the Matter of Charles McAllister, Appellant, v New York StateDivision of Parole, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), forrespondent.
Appeal from a judgment of the Supreme Court (Lynch, J.), entered April 22, 2010 in AlbanyCounty, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, toreview a determination of the Board of Parole denying petitioner's request for parole release.
In 1996, petitioner was convicted of criminal possession of a controlled substance in the seventhdegree, criminal possession of a weapon in the second degree and criminal possession of a weapon inthe third degree. He was sentenced as a persistent violent felony offender to concurrent terms ofimprisonment having an aggregate of 10 years to life. In March 2008, he made his third appearancebefore the Board of Parole seeking to be released to parole supervision. His request was denied, andhe was ordered held an additional 24 months. This determination was later upheld on administrativeappeal. Petitioner then commenced this CPLR article 78 proceeding challenging the determination. Aspart of the proceeding, he requested a stay of any further parole hearings, and respondent agreed to apostponement. Although a further parole hearing was inadvertently conducted in April 2010 inpetitioner's absence, this determination was later reversed and expunged from petitioner's institutionalrecord. Supreme Court dismissed the petition challenging the March 2008 parole determination, andpetitioner now appeals.
Initially, we note that, in light of the administrative reversal of the April 2010 parole [*2]determination, the determination at issue is not moot and we need notconsider whether it falls within the exception to the mootness doctrine as argued by petitioner. Turningto the merits, it is well settled that parole release decisions are discretionary and will not be disturbed solong as they are made in accordance with the statutory requirements set forth in Executive Law §259-i (see Matter of Nicoletta v New YorkState Div. of Parole, 74 AD3d 1609, 1609 [2010], lv dismissed 15 NY3d 867[2010]; Matter of Gonzalez v Chair, N.Y.State Bd. of Parole, 72 AD3d 1368, 1369 [2010]). Notably, the Board is not required toarticulate each statutory factor considered in making its decision nor give each factor equal weight (see Matter of Griffin v Dennison, 32 AD3d1060, 1061 [2006]; Matter of Carter vDennison, 19 AD3d 974, 974 [2005]). Here, the record reveals that the Board properly tookinto account the serious nature of petitioner's crimes, his lengthy criminal history, his prison disciplinaryrecord, his program accomplishments and his postrelease plans, as well as the sentencing minutes, indenying his request (see Matter of Miller vNew York State Div. of Parole, 72 AD3d 690, 691 [2010]; see also Matter of Karlin v Alexander, 57AD3d 1156, 1156-1157 [2008], lv denied 12 NY3d 704 [2009]). Although one of theprison disciplinary violations petitioner incurred prior to his March 2008 appearance wasadministratively reversed after the hearing, the Board's consideration of it does not warrant annulmentof its determination, especially in light of petitioner's numerous other disciplinary violations (seegenerally Matter of Arce v Travis, 273 AD2d 564, 564-565 [2000]). Inasmuch as the Board'sdetermination does not exhibit " 'irrationality bordering on impropriety' " (Matter of Silmon vTravis, 95 NY2d 470, 476 [2000], quoting Matter of Russo v New York State Bd. ofParole, 50 NY2d 69, 77 [1980]), we decline to disturb it.
We have reviewed petitioner's remaining contentions and find them to be without merit.
Mercure, J.P., Rose, Malone Jr., Stein and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed, without costs.