| Matter of Shark v New |
| 2013 NY Slip Op 06605 [110 AD3d 1134] |
| October 10, 2013 |
| Appellate Division, Third Department |
| In the Matter of Davey Shark, Appellant, v New York StateDivision of Parole Chair, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Laura Etlinger of counsel), forrespondent.
Appeal from a judgment of the Supreme Court (Mott, J.), entered March 6, 2013 inAlbany County, which dismissed petitioner's application, in a proceeding pursuant toCPLR article 78, to review a determination of the Board of Parole denying petitioner'srequest for parole release.
Petitioner committed a number of crimes while on probation in 1983, includingmurder in the second degree, and is currently serving an aggregate prison sentence of 21years to life. In October 2011, he made his third appearance before the Board of Paroleseeking to be released to parole supervision. At the conclusion of the hearing, the Boarddenied his request and ordered him held an additional 24 months. The determination waslater affirmed on administrative appeal. Petitioner then commenced this CPLR article 78proceeding challenging it, and Supreme Court ultimately dismissed the petition. Thisappeal ensued.
We affirm. It is well settled that parole release decisions are discretionary and willnot be disturbed so long as the Board complied with the statutory requirements containedin Executive Law § 259-i (see Matter of Patterson v Evans, 106 AD3d 1456, 1457[2013]; Matter of Veras v NewYork State Div. of Parole, 56 AD3d 878, 879 [2008]). Notably, the Board is notrequired to articulate every statutory factor it considered nor to give each factor equalweight (see Matter of Smith vNew York State Div. of Parole, 81 AD3d 1026, 1026 [2011]; Matter of Wright v Alexander,71 AD3d 1270, 1271 [2010]). Contrary to petitioner's claim, the record here [*2]reveals that the Board considered not only the seriousnature of petitioner's crimes, but also his clean prison disciplinary record, positiveprogram accomplishments, postrelease plans, letters of recommendation and expressionsof remorse (see Matter ofGriffin v Dennison, 32 AD3d 1060, 1061 [2006]; Matter of Wilcher v Dennison,30 AD3d 958, 959 [2006]). There is no merit to petitioner's assertion that the Boardfailed to consider the sentencing minutes as they are included in the record and werespecifically mentioned by the Board during the hearing (compare Matter of Evans vDennison, 75 AD3d 711, 712 [2010]). Likewise, there is no record support forpetitioner's claim that the Board relied upon erroneous and/or incorrect information (see Matter of Ondrizek vDennison, 39 AD3d 1114, 1115 [2007]). Furthermore, under the circumstancespresented, we do not find that the Board's imposition of a 24-month hold was excessive(see Matter of Smith v New York State Div. of Parole, 81 AD3d at 1027;Matter of Wright v Alexander, 71 AD3d at 1271). Inasmuch as the Board'sdecision does not reflect " 'irrationality bordering on impropriety' " (Matter of Silmonv Travis, 95 NY2d 470, 476 [2000], quoting Matter of Russo v New York StateBd. of Parole, 50 NY2d 69, 77 [1980]), we find no reason to disturb it.
Rose, J.P., Lahtinen, Spain and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed, without costs.