MatterofMercadovEvans

State of New York Supreme Court, Appellate Division Third Judicial Department Decided and Entered: September 25, 2014 518641 ________________________________

In the Matter of DAVID MERCADO, Appellant, v MEMORANDUM AND ORDER

ANDREA EVANS, as Chair of the Division of Parole, Respondent. ________________________________

Calendar Date: August 4, 2014 Before: Garry, J.P., Egan Jr., Lynch, Devine and Clark, JJ.

__________

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

-2- 518641

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 NY2d 470, 476 [2000] [internal quotation marks and citation omitted]; accord Matter of Hamilton v New York State Div. of Parole, 119 AD3d 1268, 1269 [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 (see Executive Law § 259-i [2] [c] [A]; Matter of Partee v Evans, 117 AD3d 1258, 1259 [2014], lv denied ___ NY3d ___ [Sept. 4, 2014]; Matter of Lashway v Evans, 110 AD3d 1417, 1418 [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 NY2d 788, 791 [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 AD3d at 1271; Matter of Partee v Evans, 117 AD3d at 1259; Matter of Lashway v Evans, 110 AD3d at 1418), 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 AD3d 1274, 1275 [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.

Garry, J.P., Egan Jr., Lynch, Devine and Clark, JJ., concur.

-3- 518641 ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court