Matter of Neal v Stanford

Matter of Neal v Stanford 2015 NY Slip Op 06858 Decided on September 17, 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: September 17, 2015
520537

[*1]In the Matter of LYNARD K. NEAL, Appellant,

v

TINA M. STANFORD, as Chair of the Board of Parole, Respondent.

Calendar Date: August 10, 2015
Before: Lahtinen, J.P., McCarthy, Egan Jr. and Lynch, JJ.

Lynard K. Neal, Sonyea, appellant pro se.

Eric T. Schneiderman, Attorney General, Albany (Frederick A. Brodie of counsel), for respondent.

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Mott, J.), entered November 24, 2014 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of the Board of Parole denying his request for parole release.

In 2012, petitioner was convicted of felony driving while intoxicated and was sentenced to 2 to 6 years in prison. In November 2013, he made his initial appearance before the Board of Parole seeking to be released to parole supervision. The Board denied his request and ordered him held for an additional 24 months. Petitioner filed an administrative appeal and, when it was not decided within four months, he commenced this CPLR article 78 proceeding. Following joinder of issue, Supreme Court dismissed the petition and this appeal ensued.

We affirm. It is well settled that parole release decisions are discretionary and will not be disturbed as long as the Board complied with the statutory requirements set forth in Executive Law § 259-i (see Matter of Delrosario v Evans, 121 AD3d 1152, 1152-1153 [2014]; Matter of Molinar v New York State Div. of Parole, 119 AD3d 1214, 1215 [2014]). Contrary to petitioner's claim, the record here discloses that the Board took into account the relevant statutory factors, including not only the crime of conviction, but also petitioner's criminal history, prison disciplinary record, program accomplishments and postrelease plans, as well as the sentencing minutes and the COMPAS Risk and Needs Assessment instrument (see Matter of Diaz v New York State Dept. of Corrections & Community Supervision, 127 AD3d 1493, 1494 [2015]; Matter of Rivers v Evans, 119 AD3d 1188, 1188 [2014]). The Board further considered petitioner's certificate of earned eligibility and receipt of merit time (see Matter of Reed v Evans, 94 AD3d 1323, 1323 [2012]; Matter of Wright v Alexander, 71 AD3d 1270, 1271 [2010]). [*2]Notably, it was not incumbent upon the Board to give each statutory factor equal weight in making its decision (see Matter of Lackwood v New York State Div. of Parole, 127 AD3d 1495, 1495 [2015]; Matter of Sanchez v Division of Parole, 89 AD3d 1305, 1306 [2011]). Accordingly, inasmuch as the Board's decision does not exhibit "'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]), we decline to disturb it.

Lahtinen, J.P., McCarthy, Egan Jr. and Lynch, JJ., concur.

ORDERED that the judgment is affirmed, without costs.