| Matter of Vigliotti v State of N.Y. Exec. Div. of Parole |
| 2012 NY Slip Op 05885 [98 AD3d 789] |
| August 2, 2012 |
| Appellate Division, Third Department |
| In the Matter of Jack Vigliotti, Appellant, v State of New YorkExecutive Division of Parole, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Frank K. Walsh of counsel), forrespondent.
Appeal from a judgment of the Supreme Court (Cahill, J.), entered January 13, 2012 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 attempted murder in the second degree, assault in thefirst degree and criminal possession of a weapon in the second degree and was sentenced to anaggregate term of 12½ to 25 years in prison. In November 2010, he made his firstappearance before the Board of Parole seeking to be released to parole supervision. At theconclusion of the hearing, petitioner's request was denied and he was ordered held an additional24 months. Petitioner took an administrative appeal and, when it was not decided within fourmonths, he commenced this CPLR article 78 proceeding. Following service of respondent'sanswer, Supreme Court dismissed the petition and this appeal ensued.
We affirm. It is well settled that parole release decisions are discretionary and will not bedisturbed so long as it is shown that the Board complied with the statutory requirements ofExecutive Law § 259-i (seeMatter of Valentino v Evans, 92 AD3d 1054, 1055 [2012]; Matter of Mentor v New York State Div. ofParole, 87 AD3d 1245, 1245-1246 [2011], lv denied 18 NY3d [*2]803 [2012], cert denied 566 US —, 132 S Ct 2437[2012]).[FN*] Notably, in making its decision, the Board is not required to articulate each statutory factorconsidered nor give each factor equal weight (see Matter of Valentino v Evans, 92 AD3dat 1055; Matter of Wright vAlexander, 71 AD3d 1270, 1271 [2010]). Here, the record reveals that the Board tookinto account not only the serious nature of the crimes, but also petitioner's criminal history, hisprison disciplinary record, program accomplishments and postrelease plans (see Matter of MacKenzie v Evans, 95AD3d 1613, 1613-1614 [2012]; Matter of Matos v New York State Bd. of Parole, 87 AD3d 1193,1194 [2011]). Contrary to petitioner's claim, the Board was entitled to place greater emphasis onthe serious nature of the crimes over the other factors (see Matter of Matos v New York StateBd. of Parole, 87 AD3d at 1194; Matter of Garofolo v Dennison, 53 AD3d 734, 734-735 [2008]).Morever, we reject petitioner's assertion that the Board was also required to consider thestatement of the victim of the crimes inasmuch as such statement was not made directly to theBoard and pertained to petitioner's guilt or innocence of the crimes, an issue that was not beforethe Board (see Executive Law § 259-i [2] [c] [A] [v]; Matter of Champion v Dennison, 40AD3d 1181, 1182 [2007], lv dismissed 9 NY3d 913 [2007]). Furthermore, given thatpetitioner did not challenge the accuracy of the information contained in the presentenceinvestigation report before the sentencing court, he is precluded from arguing that the Boarderred in relying upon such information (see Matter of Carter v Evans, 81 AD3d 1031, 1031-1032 [2011],lv denied 16 NY3d 712 [2011]; Matter of Manley v New York State Bd. of Parole, 21 AD3d 1209,1209-1210 [2005], lv denied 6 NY3d 702 [2005]). In sum, the Board's decision does notexhibit " 'irrationality bordering on impropriety' " and we find no reason to disturb it (Matterof Silmon v Travis, 95 NY2d 470, 476 [2000], quoting Matter of Russo v New YorkState Bd. of Parole, 50 NY2d 69, 77 [1980]).
Peters, P.J., Spain, Malone Jr., Garry and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed, without costs.
Footnote *: We note that Executive Law§ 259-i and related parole statutes were amended after the Board's decision in this case(see L 2011, ch 62, § 1, part C, § 1, subpart A, §§ 38-b, 38-f-1).