Matter of Valentino v Evans

2012 NY Slip Op 00879 [92 AD3d 1054]

February 9, 2012

Appellate Division, Third Department

As corrected through Wednesday, March 28, 2012

In the Matter of Florio Valentino, Appellant, v Andrea D. Evans, asChair of the New York State Division of Parole, Respondent.

—[*1]Florio Valentino, Napanoch, appellant pro se.

Eric T. Schneiderman, Attorney General, Albany (Frank Brady of counsel), forrespondent.

Appeal from a judgment of the Supreme Court (Zwack, J.), entered April 11, 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 petitioner's request for parole release.

In 1987, petitioner brutally stabbed his former girlfriend and her sister, causing his formergirlfriend to become a quadriplegic prior to her death three years later and her sister to sufferserious injuries. As a result, he was convicted of the crimes of burglary in the first degree,unlawful imprisonment in the first degree and six counts of assault in the first degree (Peoplev Tatta, 196 AD2d 328 [1994], lv denied 83 NY2d 972 [1994])^[FN*]and was sentenced to an aggregate term of 131/3 to 40 years in prison. In July2010, petitioner made his seventh appearance before the Board of Parole seeking to be releasedto parole supervision. At the conclusion of the hearing, the Board denied his request and orderedhim held for an additional 24 months. After the determination was affirmed on administrativeappeal, petitioner commenced this CPLR article 78 proceeding. Following service ofrespondent's answer, Supreme Court dismissed the petition and this appeal ensued.[*2]

We affirm. It is well settled that parole release decisionsare discretionary and will not be disturbed so long as the Board complied with the statutoryrequirements set forth in Executive Law § 259-i (see Matter of Dalton v Evans, 84 AD3d 1664, 1664 [2011]; Matter of Smith v New York State Div. ofParole, 81 AD3d 1026, 1026 [2011]). Significantly, the Board is not required toarticulate every factor considered in making its decision or to accord each factor equal weight (see Matter of Wright v Alexander, 71AD3d 1270, 1271 [2010]; Matter ofSerrano v Alexander, 70 AD3d 1099, 1100 [2010]). Contrary to petitioner's claim, therecord here discloses that the Board complied with the statutory requirements, taking intoconsideration not only the violent nature of petitioner's crimes and his past criminal history, butalso his prison disciplinary record, program accomplishments, educational achievements andpostrelease plans (see Matter ofSutherland v Evans, 82 AD3d 1428, 1429 [2011]; Matter of Mojica v Travis, 34 AD3d 1155, 1156 [2006]). Nor dowe find merit to petitioner's claim that the Board's decision violated the double jeopardy clause ofthe US Constitution. In sum, the Board's decision does not exhibit " 'irrationality bordering onimpropriety' " (Matter of Silmon v Travis, 95 NY2d 470, 476 [2000], quoting Matterof Russo v New York State Bd. of Parole, 50 NY2d 69, 77 [1980]), and we find no reason todisturb it.

Mercure, A.P.J., Peters, Lahtinen, Stein and McCarthy, JJ., concur. Ordered that thejudgment is affirmed, without costs.

Footnote *: Petitioner changed his namefollowing his criminal conviction.