Dean v. New York State Division of Parole

Appeal from a judgment of the Supreme Court (Kavanagh, J.), entered March 21, 2005 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CFLR article 78, to review a determination of the Board of Earole denying his request for parole release. Fetitioner is serving an aggregate prison sentence of 25 years 1208 to life following his 1978 conviction of, among other things, murder in the first degree for the shooting death of a police officer. Petitioner commenced this CPLR article 78 proceeding challenging an April 2004 determination of the Board of Parole denying his request for parole release upon his second appearance. Supreme Court dismissed the petition, prompting this appeal. We affirm. Parole release determinations are discretionary and will not be disturbed unless there is a “ ‘showing of irrationality bordering on impropriety’ ” (Matter of Silmon v Travis, 95 NY2d 470, 476 [2000], quoting Matter of Russo v New York State Bd. of Parole, 50 NY2d 69, 77 [1980]). Here, while the Board placed emphasis on the nature of the instant offense and petitioner’s involvement with weapons and drugs, the record establishes that it also considered all of the relevant statutory factors, including petitioner’s positive achievements while incarcerated (see Executive Law § 259-i [1] [a]; [2] [c]; [5]). Consequently, we find no basis upon which to disturb the Board’s determination denying petitioner’s request for parole release (see Matter of Davis v New York State Bd. of Parole, 17 AD3d 970 [2005]; Matter of Moore v Travis, 8 AD3d 717, 717-718 [2004]). Petitioner’s remaining contentions, including his claim that the Board’s decision was predetermined, have been reviewed and found to be without merit. Crew III, J.P., Carpinello, Mugglin, Lahtinen and Kane, JJ., concur. Ordered that the judgment is affirmed, without costs.