Matter of Tran v Evans

Matter of Tran v Evans 2015 NY Slip Op 02162 Decided on March 19, 2015 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: March 19, 2015
519178

[*1]In the Matter of DANG TRAN, Appellant,

v

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

Calendar Date: January 20, 2015
Before: McCarthy, J.P., Garry, Lynch and Devine, JJ.

Dang Tran, Woodbourne, appellant pro se.

Eric T. Schneiderman, Attorney General, Albany (Laura Etlinger of counsel), for respondent.

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (LaBuda, J.), entered May 23, 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.

In 1995, while on probation, petitioner shot three individuals, killing one of them. He was subsequently convicted of murder in the second degree and attempted murder in the second degree (two counts) and sentenced to an aggregate prison term of 18 years to life. In July 2013, petitioner made his initial appearance before the Board of Parole seeking to be released to parole supervision. Following a hearing, his request was denied and he was ordered held an additional 24 months. Petitioner filed an administrative appeal and, when it was not decided within four months, then commenced this CPLR article 78

proceeding. Following joinder of issue, Supreme Court dismissed the petition and this appeal ensued.

We affirm. Where the Board has complied with the statutory requirements governing parole procedures, "[j]udicial intervention is warranted only when there is a showing of irrationality bordering on impropriety" (Matter of Mercado v Evans, 120 AD3d 1521, 1522 [2014] [internal quotation marks and citation omitted]; accord Matter of Hamilton v New York State Div. of Parole, 119 AD3d 1268, 1269 [2014]). Here, the record reveals that the Board considered the serious nature of petitioner's crimes, together with other relevant statutory factors, including his clean prison disciplinary record, his programming accomplishments, the available sentencing minutes, the existence of a deportation order, the COMPAS Risk and Needs [*2]Assessment instrument and his plans upon release (see Executive Law § 259-i [c] [2] [A] [i]-[viii]; Matter of Mercado v Evans, 120 AD3d at 1522).

We have previously considered and rejected petitioner's argument that the Board did not comply with the 2011 amendments to Executive Law § 259-c (4) (see Matter of Montane v Evans, 116 AD3d 197, 202-203 [2014], appeal dismissed 24 NY3d 1052 [2014]). Similarly, as petitioner was admitted to state custody in 1997, his contention that the Board failed to comply with the statutory mandate requiring the development of a transitional accountability plan for inmates in prison, as is set forth in Correction Law § 71-a, is unpersuasive (see Matter of Rivera v New York State Div. of Parole, 119 AD3d 1107, 1109 [2014]; see also Matter of Delacruz v Annucci, 122 AD3d 1413, 1414 [2014]).

Upon review, we find that the Board's determination complies with the statutory requirements, and does not evince "irrationality bordering on impropriety" (Matter of Hamilton v New York State Div. of Parole, 119 AD3d at 1269 [internal quotation marks and citations omitted]; accord Matter of Molinar v New York State Div. of Parole, 119 AD3d 1214, 1216 [2014]). Accordingly, it will not be disturbed. Petitioner's remaining arguments have been considered and found to be lacking in merit.

McCarthy, J.P., Garry, Lynch and Devine, JJ., concur.

ORDERED that the judgment is affirmed, without costs.