| Matter of Sutherland v Evans |
| 2011 NY Slip Op 01908 [82 AD3d 1428] |
| March 17, 2011 |
| Appellate Division, Third Department |
| In the Matter of Patrick Sutherland, Appellant, v Andrea W. Evans,as Chair of the Division of Parole, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Kate H. Nepveu of counsel), forrespondent.
Appeal from a judgment of the Supreme Court (McNamara, J.), entered June 24, 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 in 1990 of various crimes, including two counts of burglary in thefirst degree, and he was sentenced as a second violent felony offender to an aggregate prison termof 18 to 36 years. In June 2009, petitioner made his second appearance before the Board ofParole seeking parole release. That request was denied, and petitioner was ordered to be held foran additional 24 months. When petitioner received no response to his administrative appeal, hecommenced this CPLR article 78 proceeding. Supreme Court dismissed the petition, andpetitioner now appeals.
We affirm. We disagree with petitioner that the Board relied upon erroneous informationregarding the crime for which he was convicted. Although the initial inmate statusreport—which included information about a crime for which petitioner was arrested, butnot convicted—was mistakenly included in the packet before the Board, there is nothing inthe record to suggest that the erroneous information served as a basis for the decision to deny hisrelease (see Matter of Restivo v NewYork State Bd. of Parole, 70 AD3d 1096, 1097 [2010]; [*2]Matterof Williams v Travis, 11 AD3d 788, 790 [2004], lv dismissed 4 NY3d 813[2005]). Petitioner brought the error to the Board's attention and he received assurances that theBoard would not be considering information regarding charges that had been dismissed. Further,the reference in the Board's decision to the assault of one of petitioner's victims was amplysupported by his admission during the hearing that he struck a victim in the face. We find that theBoard properly considered all of the relevant statutory factors in denying petitioner's request forparole release, including his education and program achievements, disciplinary record andpostrelease plans, as well as his criminal history and the seriousness of his crimes and, therefore,we cannot say that its decision exhibited "irrationality bordering on impropriety" (Matter ofRestivo v New York State Bd. of Parole, 70 AD3d at 1097 [internal quotation marks andcitations omitted]; accord Matter ofComfort v New York State Div. of Parole, 68 AD3d 1295, 1297 [2009]).
Finally, although the submission of the initial inmate status report to the Board violatedparole guidelines, this did not provide a basis for annulment, as the guidelines " 'are notpromulgated pursuant to an express grant of legislative authority and do not have the force oflaw' " (Matter of Perez v Evans, 76AD3d 1130, 1131 [2010], quoting People ex rel. MacKelvey v New York State Div. ofParole, 138 AD2d 549 [1988], lv denied 72 NY2d 802 [1988]). Petitioner'sremaining arguments have been examined and found to be without merit.
Peters, J.P., Rose, Malone Jr. and Garry, JJ., concur. Ordered that the judgment is affirmed,without costs.