| Matter of Gelsomino v New York State Bd. of Parole |
| 2011 NY Slip Op 02391 [82 AD3d 1097] |
| March 22, 2011 |
| Appellate Division, Second Department |
| In the Matter of Louis Gelsomino, Appellant, v New YorkState Board of Parole, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, New York, N.Y. (Michael S. Belohlavek andPatrick J. Walsh of counsel), for respondent.
In a proceeding pursuant to CPLR article 78 to review a determination of the New York StateBoard of Parole dated January 6, 2009, denying his application to be released on parole, thepetitioner appeals from a judgment of the Supreme Court, Richmond County (Rooney, J.), datedJuly 27, 2010, which denied the petition and dismissed the proceeding.
Ordered that the judgment is reversed, on the law, without costs or disbursements, thepetition is granted to the extent that the determination is annulled, and the matter is remitted tothe New York State Division of Parole for a new hearing and a new determination.
Pursuant to Executive Law § 259-i (2) (c), the New York State Board of Parole(hereinafter the Parole Board) is required to consider a number of statutory factors in determiningwhether an inmate should be released on parole (see Matter of Miller v New York State Div. of Parole, 72 AD3d690, 691 [2010]; Matter of Mitchellv New York State Div. of Parole, 58 AD3d 742, 743 [2009]). The Parole Board is notrequired to give equal weight to each statutory factor, nor is it required specifically to articulateevery factor considered (see Matter ofHuntley v Evans, 77 AD3d 945, 947 [2010]; Matter of Miller v New York State Div.of Parole, 72 AD3d at 691). However, "where the Parole Board denies release to parolesolely on the basis of the seriousness of the offense, in the absence of any aggravatingcircumstance, it acts irrationally" (see Matter of Huntley v Evans, 77 AD3d at 947;Matter of Mitchell v New York State Div. of Parole, 58 AD3d at 743). Here, in denyingthe petitioner's application for release on parole, the Parole Board cited only the circumstances ofthe underlying crimes and failed to mention any of the other statutory factors, including hisexcellent disciplinary record, his record of achievements while incarcerated, as well as positivestatements made by the sentencing court (see Matter of Huntley v Evans, 77 AD3d at947). Accordingly, the petitioner is entitled to a new hearing and a new determination. Rivera,J.P., Dickerson, Eng and Lott, JJ., concur.