Matter of Cobos v Dennison

Matter of Cobos v Dennison 2006 NY Slip Op 08529 [34 AD3d 1325] November 17, 2006 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 17, 2007

In the Matter of Gino Rudolph Cobos, Appellant, et al., Petitioners, v Robert Dennison, as Chairman of New York State Division of Parole, et al., Respondents.

—[*1]

Appeal from a judgment (denominated order) of the Supreme Court, Orleans County (James P. Punch, A.J.), entered September 7, 2005 in a proceeding pursuant to CPLR article 78. The judgment dismissed the petition.

It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Petitioner Gino Rudolph Cobos contends that the standards for parole release determinations under Executive Law § 259-i are unconstitutional because they do not differentiate between adult offenders and offenders who committed crimes when they were less than 18 years of age, relying on Roper v Simmons (543 US 551 [2005]). The decision of the United States Supreme Court in Roper was limited to death penalty statutes as applied to juvenile offenders and we see no reason to apply the holding of Roper to parole release determinations. In any event, the statutory framework regarding discretionary parole decisions allows the Parole Board to consider "any mitigating and aggravating factors" associated with the offense and thus allows the Parole Board to consider an offender's juvenile status when making parole release determinations (Executive Law § 259-i [1] [a]; see § 259-i [2] [c] [A]). Present—Kehoe, J.P., Martoche, Smith and Pine, JJ.