| Matter of Francis v New York State Div. of Parole |
| 2011 NY Slip Op 08268 [89 AD3d 1312] |
| November 17, 2011 |
| Appellate Division, Third Department |
| In the Matter of Gary Francis, Appellant, v New York State Division ofParole, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Zainab A. Chaudhry of counsel), forrespondent.
Appeal from a judgment of the Supreme Court (Gilpatric, J.), entered April 19, 2011 in AlbanyCounty, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, toreview a determination of the Board of Parole denying his request for parole release.
In 1991, petitioner was convicted of attempted murder in the first degree as well as criminalpossession of a weapon in the second degree and was sentenced to an aggregate prison term of 20years to life. In December 2009, he made his first appearance before the Board of Parole seeking to bereleased to parole supervision. At the conclusion of the hearing, his request was denied and he wasordered held an additional 24 months. After the determination was upheld on administrative appeal,petitioner commenced this CPLR article 78 proceeding. Following service of respondent's answer,Supreme Court dismissed the petition and this appeal ensued.
Petitioner contends that the Board failed to take into consideration the statutory factors set forth inExecutive Law § 259-i in denying his request for parole release. He further asserts that theBoard placed undue emphasis on the nature of his crimes and ignored his institutional achievements.Based upon our review of the record, we disagree. The Board took into account not only the seriousnature of petitioner's crimes, but also his violent criminal history, prison disciplinary record, institutionalachievements and postrelease plans, all factors enumerated in Executive Law § 259-i (see Matter of Karlin v Alexander, 57 AD3d1156, 1156-1157 [2008], lv denied 12 NY3d 704 [2009]; Matter [*2]ofMacKenzie v Dennison, 55 AD3d 1092, 1092 [2008]). Notably, the Board is not required togive each statutory factor equal weight and could, as it did, place greater emphasis on the serious natureof the crimes that involved his shooting of a police officer in the head (see Matter of Santos v Evans, 81 AD3d1059, 1060 [2011]; Matter of Williamsv Alexander, 71 AD3d 1264, 1265 [2010]). Contrary to petitioner's claim, it was notincumbent upon the Board to give petitioner suggestions as to how he could improve his chances ofbeing released to parole supervision. Petitioner's remaining arguments have been considered and areunavailing. In sum, the Board's decision does not demonstrate " 'irrationality bordering on impropriety' "(Matter of Silmon v Travis, 95 NY2d 470, 476 [2000], quoting Matter of Russo v NewYork State Bd. of Parole, 50 NY2d 69, 77 [1980]), and we find no reason to disturb it.
Peters, J.P., Spain, Kavanagh, Stein and McCarthy, JJ., concur. Ordered that the judgment isaffirmed, without costs.