Opinion
519653.
04-23-2015
In the Matter of Jose DIAZ, Appellant, v. NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION et al., Respondents.
Jose Diaz, Otisville, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Victor Paladino of counsel), for respondents.
Jose Diaz, Otisville, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany (Victor Paladino of counsel), for respondents.
Before: PETERS, P.J., LAHTINEN, GARRY and ROSE, JJ.
Opinion Appeal from a judgment of the Supreme Court (Platkin, J.), entered July 30, 2014 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent Board of Parole denying petitioner's request for parole release.Petitioner was convicted of various crimes, including murder in the second degree, and was sentenced to an aggregate term of 15 years to life in prison. In April 2013, he made his fifth appearance before respondent Board of Parole seeking to be released to parole supervision. The Board denied his request and ordered him held for an additional 24 months. Petitioner took an administrative appeal and, when it was not decided within four months, he commenced this CPLR article 78 proceeding. Following service of respondents' answer, Supreme Court dismissed the petition and petitioner now appeals.
Initially, it is well established that parole release decisions are discretionary and will not be disturbed provided that the Board complied with the statutory requirements set forth in Executive Law § 259–i (see Matter of Delacruz v. Annucci, 122 A.D.3d 1413, 1413, 997 N.Y.S.2d 872 [2014] ; Matter of Molinar v. New York State Div. of Parole, 119 A.D.3d 1214, 1215, 991 N.Y.S.2d 487 [2014] ). Contrary to petitioner's claim, the Board considered the relevant statutory factors, including the serious nature of petitioner's crimes, his criminal history, his prison disciplinary record, his program accomplishments and his postrelease plans, as well as the sentencing minutes and the COMPAS Risk and Needs Assessment instrument (see Matter of Delrosario v. Evans, 121 A.D.3d 1152, 1153, 993 N.Y.S.2d 591 [2014] ; Matter of Rivers v. Evans, 119 A.D.3d 1188, 1188, 989 N.Y.S.2d 400 [2014] ). Significantly, the Board was not required to place equal weight upon each statutory factor that it considered (see Matter of Singh v. Evans, 118 A.D.3d 1209, 1210, 987 N.Y.S.2d 271 [2014], lv. denied 24 N.Y.3d 906, 2014 WL 5368893 [2014] ; Matter of Shark v. New York State Div. of Parole, 110 A.D.3d 1134, 1134, 972 N.Y.S.2d 741 [2013], lv. dismissed 23 N.Y.3d 933, 986 N.Y.S.2d 876, 10 N.E.3d 186 [2014] ). Moreover, in light of our decision in Matter of Montane v. Evans, 116 A.D.3d 197, 202, 981 N.Y.S.2d 866 (2014), appeal dismissed 24 N.Y.3d 1052, 999 N.Y.S.2d 360, 24 N.E.3d 597 (2014), we find that the Board adequately complied with the 2011 amendments to Executive Law § 259–c (4). We have considered petitioner's remaining contentions and find them to be unavailing. Given that the Board's decision does not exhibit “ ‘irrationality bordering on impropriety’ ” (Matter of Silmon v. Travis, 95 N.Y.2d 470, 476, 718 N.Y.S.2d 704, 741 N.E.2d 501 [2000], quoting Matter of Russo v. New York State Bd. of Parole, 50 N.Y.2d 69, 77, 427 N.Y.S.2d 982, 405 N.E.2d 225 [1980] ), we find no reason to disturb it.
Subsequent to the Board's April 2013 decision denying petitioner parole, the Board promulgated formal regulations governing parole release procedures (see 9 NYCRR 8002.3 ) and, as a result, the Court of Appeals dismissed the appeal as moot in Matter of Montane v. Evans (supra). Insofar as the April 2013 decision was rendered well before these regulations took effect, petitioner may not challenge them here.
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ORDERED that the judgment is affirmed, without costs.