Cohen v. Lemons

Appeal from a judgment of the Supreme Court (Feldstein, J.), [707] entered September 30, 2009 in Franklin 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 was convicted in 1987 of attempted sodomy in the second degree and was sentenced to a prison term of four years to life. The conviction arose out of petitioner’s sexual encounters with a young girl, and followed a decades-long course of deviant sexual behavior that had resulted in numerous prior convictions. The Board of Parole denied petitioner’s 2008 request for parole release, and he commenced this CPLR article 78 proceeding to challenge the Board’s determination. Supreme Court dismissed the petition, prompting this appeal. We affirm. The record reflects that the Board considered the pertinent factors set forth in Executive Law § 259-i, including petitioner’s postrelease plans, earned eligibility certificate, institutional record, the nature of the underlying offense and his prior criminal history (see Matter of Ruiz v New York State Div. of Parole, 70 AD3d 1162, 1163 [2010]; Matter of Karlin v Alexander, 57 AD3d 1156, 1156-1157 [2008], lv denied 12 NY3d 704 [2009]). As the Board was entitled to—and did—stress the nature of the underlying offense, petitioner’s troubling criminal history and his prison disciplinary record over other factors, we cannot say that its decision demonstrates “irrationality bordering on impropriety” and will not disturb it (Matter of Russo v New York State Bd. of Parole, 50 NY2d 69, 77 [1980]; see Matter of Karlin v Alexander, 57 AD3d at 1157; Matter of Wellman v Dennison, 23 AD3d 974, 975 [2005]). Petitioner’s remaining arguments have been considered and, to the extent they Eire properly before us, have been found to be unpersuasive. Cardona, PJ., Mercure, Rose, Lahtinen and Stein, JJ., concur. Ordered that the judgment is affirmed, without costs.