Opinion
521134.
05-19-2016
In the Matter of Tonie WILEY, Appellant, v. STATE of New York DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, Respondent.
Tonie Wiley, Collins, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Frank Brady of counsel), for respondent.
Tonie Wiley, Collins, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany (Frank Brady of counsel), for respondent.
Before: LAHTINEN, J.P., McCARTHY, GARRY, ROSE and AARONS, JJ.
Opinion
ROSE, J. Appeal from a judgment of the Supreme Court (Ceresia, J.), entered April 16, 2015 in Albany 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.
In 1989, petitioner was convicted of murder in the second degree, among other charges. Petitioner used trickery while on parole to gain access to a woman's home, where he terrorized her, removed her clothing, bound and suffocated her by tying a plastic bag over her head, and then stole items of personal property, including her car and her dog. He was sentenced, as a second felony offender, to an aggregate prison sentence of 25 years to life. In October 2013, petitioner made his fourth appearance before the Board of Parole seeking to be released to parole supervision. The Board denied his request and ordered him to be held for an additional 24 months. After his administrative appeal was not timely decided, petitioner commenced this CPLR article 78 proceeding. Supreme Court dismissed the petition in a thorough decision addressing the merits of each of petitioner's claims, prompting this appeal.
Petitioner's next appearance before the Board of Parole, scheduled for October 2015, has been postponed to permit him to pursue this appeal.
We affirm. Parole release decisions, made after a case-by-case factual review of an inmate's application, are discretionary and will not be disturbed so long as the Board complied with the statutory requirements set forth in Executive Law § 259–i (see Matter of Diaz v. New York State Dept. of Corrections & Community
Supervision, 127 A.D.3d 1493, 1494, 7 N.Y.S.3d 690 [2015] ). Here, the record reflects that the Board took into consideration the relevant statutory factors, including the seriousness of these crimes, committed only months after petitioner was released on parole for a prior attempted rape, and his criminal history dating back to 1976. The Board also fully considered petitioner's positive institutional record and the absence of disciplinary charges since 1997, his postrelease plans and his rehabilitative and educational efforts. Also taken into account, as required, was the COMPAS Risk and Needs Assessment instrument (see Matter of Hawthorne v. Stanford, 135 A.D.3d 1036, 1038, 22 N.Y.S.3d 640 [2016] ). Contrary to petitioner's claim, the Board in its discretion properly placed greater emphasis on the present offenses, as it “was not required to give equal weight to all requisite factors” (Matter of Boccadisi v. Stanford, 133 A.D.3d 1169, 1170, 20 N.Y.S.3d 477 [2015] ; see Matter of Feilzer v. New York State Div. of Parole, 131 A.D.3d 1321, 1322, 16 N.Y.S.3d 341 [2015] ).
Likewise lacking in merit is petitioner's contention that the Board failed to comply with the 2011 amendments to Executive Law § 259–c (4). As Supreme Court correctly noted, the Board was not required by the 2011 amendment to Correction Law § 71–a to draft a transitional accountability plan for petitioner, as this requirement only “applies to inmates admitted to prison after its effective date” (Matter of Borges v. Stanford, 127 A.D.3d 1491, 1491, 8 N.Y.S.3d 459 [2015] ; see Matter of Hill v. New York State Bd. of Parole, 130 A.D.3d 1130, 1131, 14 N.Y.S.3d 515 [2015] ). Given that the Board's decision does not reflect “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]; Matter of Boccadisi v. Stanford, 133 A.D.3d at 1171, 20 N.Y.S.3d 477 ), it will not be disturbed. Petitioner's remaining contentions have been reviewed and determined to lack merit.
Although not applicable here to petitioner's 2013 hearing, the Board has since promulgated regulations, effective July 30, 2014, implementing the 2011 amendments to Executive Law § 259–c (4) (see 9 NYCRR 8002.3 ; Matter of Diaz v. New York State Dept. of Corrections & Community Supervision, 127 A.D.3d at 1494 n., 7 N.Y.S.3d 690 ).
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ORDERED that the judgment is affirmed, without costs.
LAHTINEN, J.P., McCARTHY, GARRY and AARONS, JJ., concur.