| Matter of Dalton v Evans |
| 2011 NY Slip Op 04338 [84 AD3d 1664] |
| May 26, 2011 |
| Appellate Division, Third Department |
| In the Matter of John Dalton, Appellant, v Andrea W. Evans, asChair of the Division of Parole, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Frank Brady 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 is serving an aggregate prison term of seven years to life stemming from his 1991conviction for murder in the second degree. Following his sixth appearance before the Board ofParole in March 2009, petitioner's request for parole release was denied and the Board orderedthat he be held for an additional 24 months. Petitioner thereafter commenced this CPLR article78 proceeding to challenge the Board's determination. Supreme Court dismissed the petition andpetitioner now appeals.
We affirm. Initially, to the extent that the Attorney General contends that this appeal is mootby virtue of petitioner's reappearance before the Board, we find that the circumstances herewarrant our finding that the exception to the mootness doctrine applies, inasmuch as the Boardhas failed to render a final determination as a result of either of petitioner's reappearances (seeMatter of Hearst Corp. v Clyne, 50 NY2d 707, 714-715 [1980]; see e.g. Matter of Standley v New YorkState Div. of Parole, 34 AD3d 1169, 1170 [2006]). Turning to the merits, parole releasedecisions are discretionary and will not be disturbed when the Board has complied with thestatutory requirements set forth in Executive Law § 259-i (see Matter of Santos vEvans, 81 [*2]AD3d 1059, 1060 [2011]; Matter of Ruiz v New York State Div. ofParole, 70 AD3d 1162, 1163 [2010]). Moreover, in rendering its decision, the Boardneed not articulate every statutory factor considered, nor must it accord every factor equal weight(see Matter of Abdur-Raheem v NewYork State Bd. of Parole, 78 AD3d 1412, 1413 [2010]; Matter of Serrano v Alexander, 70AD3d 1099, 1100 [2010]). Here, the record demonstrates that the Board appropriatelyconsidered petitioner's programmatic and educational achievements, prison disciplinary recordand proposed release plans as well as the nature of the instant crime (see Matter of Perez v Evans, 76 AD3d1130, 1131 [2010]; Matter ofRodriguez v Alexander, 71 AD3d 1354 [2010], lv denied 15 NY3d 703 [2010]).While it appears that the Board accorded more weight to the nature and seriousness of petitioner'smurder conviction, we cannot say that its determination demonstrates " 'irrationality bordering onimpropriety' " (Matter of Perez v Evans, 76 AD3d at 1131, quoting Matter of Russo vNew York State Bd. of Parole, 50 NY2d 69, 77 [1980]).
Rose, J.P., Lahtinen, Malone Jr., Garry and Egan Jr., JJ., concur. Ordered that the judgmentis affirmed, without costs.