Matter of Gssime v New York State Div. of Parole

2011 NY Slip Op 04154 [84 AD3d 1630]

May 19, 2011

Appellate Division, Third Department

As corrected through Wednesday, July 6, 2011

In the Matter of Said Gssime, Appellant, v New York StateDivision of Parole, Respondent.

—[*1]Said Gssime, Marcy, appellant pro se.

Eric T. Schneiderman, Attorney General, Albany (Julie M. Sheridan of counsel), forrespondent.

Appeal from a judgment of the Supreme Court (McGrath, J.), entered October 27, 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.

In 1998, petitioner was convicted of arson in the second degree and criminal contempt in thefirst degree after he set fire to a home in which his young daughter, estranged wife and in-lawswere sleeping. He was sentenced, respectively, to concurrent terms of 12½ to 25 years and11/3 to 4 years in prison. In June 2009, petitioner made his first appearance beforethe Board of Parole seeking to be released to parole supervision. At the conclusion of thehearing, his request was denied and he was ordered held an additional 24 months. Petitioner filedan administrative appeal and, when a decision was not rendered within four months, hecommenced this CPLR article 78 proceeding.^[FN*]Following service of respondent's answer, Supreme Court dismissed the petition. This appealensued.[*2]

It is well settled that parole release decisions arediscretionary and will not be disturbed so long as the Board complied with the statutoryrequirements enumerated in Executive Law § 259-i (see Matter of Santos v Evans, 81 AD3d 1059, 1060 [2011]; Matter of Wright v Alexander, 71AD3d 1270, 1271 [2010]). Here, the record discloses that the Board properly considered theserious nature of petitioner's crimes, his clean criminal record, prior prison disciplinaryviolations, positive program accomplishments and postrelease plans in denying his request forparole release (see Matter of Smith vNew York State Div. of Parole, 81 AD3d 1026, 1026 [2011]; Matter of Gordon v New York State Bd. ofParole, 81 AD3d 1032, 1033 [2011]). While petitioner maintains that he was sufferingfrom a mental defect at the time he committed the crimes, the Board also took into account themental health assistance provided to him during his incarceration. Contrary to petitioner's claim,there is no indication that the Board discriminated against him based on his race. Therefore, asthe Board considered the appropriate statutory factors and its decision does not exhibit "'irrationality bordering on impropriety' " (Matter of Silmon v Travis, 95 NY2d 470, 476[2000], quoting Matter of Russo v New York State Bd. of Parole, 50 NY2d 69, 77[1980]), we find no reason to disturb it.

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

Footnote *: It is to be noted that a decisionwas subsequently rendered on petitioner's administrative appeal upholding the Board'sdetermination.