Matter of Ernest Scott v New York State Division of Parole

Matter of Scott v New York State Div. of Parole 2005 NY Slip Op 08915 [23 AD3d 950] November 23, 2005 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 18, 2006

In the Matter of Ernest Scott, Appellant, v New York State Division of Parole et al., Respondents.

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Appeal from a judgment of the Supreme Court (Ceresia, Jr., J.), entered February 8, 2005 in Albany County, which dismissed petitioner's application, in proceeding pursuant to CPLR article 78, to review a determination of the Board of Parole denying petitioner's request for parole release.

In 1999, petitioner pleaded guilty to manslaughter in the second degree after he was accused of conspiring with an acquaintance to kill his business partner. Following a heated argument with the victim, petitioner drove the acquaintance to the victim's home and provided him with a gun, whereupon the acquaintance fatally shot the victim and injured the victim's girlfriend by shooting her in the head. Petitioner confessed to his involvement in the crime more than four years later after he was arrested for felony marihuana possession. He was sentenced to 5 to 15 years in prison and made his first appearance before the Board of Parole in December 2003. The Board denied petitioner's request for parole release and its decision was affirmed on administrative appeal. Petitioner then commenced this CPLR article 78 proceeding challenging that decision. Supreme Court dismissed the petition, resulting in this appeal.

Contrary to petitioner's claim, the Board took into account the relevant factors in denying his request for parole release, including the serious nature of his crime as well as his receipt of a certificate of earned eligibility, remorse for his conduct, program accomplishments, vocational skills, clean disciplinary record and postrelease plans for employment and residence (see Executive Law § 259-i [1] [a]; [2] [c] [A]; see also Matter of Davis v New York State Bd. of Parole, 17 AD3d 970, 970 [2005]; Matter of Aulet v Travis, 17 AD3d 883, 884 [2005]). [*2]Furthermore, there is nothing to substantiate petitioner's claim that the Board's decision was part of an executive policy to deny release to violent felons (see Matter of Davis v New York State Bd. of Parole, supra at 970). On the record as a whole, we do not find that the Board's decision exhibits " '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]) and, therefore, we decline to disturb it. We have considered petitioner's remaining contentions and find them to be unavailing.

Cardona, P.J., Mercure, Crew III, Peters and Spain, JJ., concur. Ordered that the judgment is affirmed, without costs.