Opinion
2014-09-25
In the Matter of David MERCADO, Appellant, v. Andrea EVANS, as Chair of the Division of Parole, Respondent.
David Mercado, Woodbourne, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Zainab A. Chaudhry of counsel), for respondent.
David Mercado, Woodbourne, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Zainab A. Chaudhry of counsel), for respondent.
Appeal from a judgment of the Supreme Court (LaBuda, J.), entered February 20, 2014 in Sullivan County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of the Board of Parole denying petitioner's request for parole release.
Petitioner is serving a sentence of 22 years to life upon his conviction of murder in the second degree. The conviction arose from a March 1991 incident in which petitioner, who had consumed a significant amount of alcohol and cocaine, killed a taxi driver by shooting him in the back, neck and shoulders as the taxi drove away. In December 2012, petitioner made his initial appearance before the Board of Parole, which denied his request for release and ordered him held for an additional 24 months. After he did not receive a timely response to his administrative appeal, petitioner commenced this CPLR article 78 proceeding. Supreme Court dismissed the petition, prompting this appeal.
We affirm. Where the Board has complied with the statutes governing parole procedures, “[j]udicial intervention is warranted only when there is a showing of 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] [internal quotation marks and citation omitted]; accord Matter of Hamilton v. New York State Div. of Parole, 119 A.D.3d 1268, 1269, 990 N.Y.S.2d 714 [2014] ). Contrary to petitioner's argument, the Board considered the relevant statutory factors, including petitioner's criminal history and the nature of the crime, vocational and educational accomplishments, prison disciplinary record, COMPAS Risk and Needs Assessment instrument, and his postrelease plans ( seeExecutive Law § 259–i[2][c][A]; Matter of Partee v. Evans, 117 A.D.3d 1258, 1259, 984 N.Y.S.2d 894 [2014], lv. denied ––– N.Y.3d ––––, 2014 WL 4357485 [Sept. 4, 2014]; Matter of Lashway v. Evans, 110 A.D.3d 1417, 1418, 974 N.Y.S.2d 164 [2013] ). The “Board need not expressly discuss each of these guidelines in its determination” ( Matter of King v. New York State Div. of Parole, 83 N.Y.2d 788, 791, 610 N.Y.S.2d 954, 632 N.E.2d 1277 [1994] ), and it is entitled to place a greater emphasis on the serious nature of the crime ( see Matter of Hamilton v. New York State Div. of Parole, 119 A.D.3d at 1271, 990 N.Y.S.2d 714; Matter of Partee v. Evans, 117 A.D.3d at 1259, 984 N.Y.S.2d 894; Matter of Lashway v. Evans, 110 A.D.3d at 1418, 974 N.Y.S.2d 164), as it did here. Although the Board's decision contained a factual misstatement regarding whether the fatal shot struck petitioner's victim in the head rather than the neck, there is no suggestion that its determination was affected by the discrepancy to any meaningful extent ( see Matter of Singh v. Evans, 107 A.D.3d 1274, 1275, 968 N.Y.S.2d 648 [2013] ). Inasmuch as the Board's decision does not evince irrationality bordering on impropriety, it must be affirmed.
Petitioner's remaining arguments have been considered and found to be lacking in merit.
ORDERED that the judgment is affirmed, without costs. GARRY, J.P., EGAN JR., LYNCH, DEVINE and CLARK, JJ., concur.