Matter of Malone v Evans

Matter of Malone v Evans 2011 NY Slip Op 02886 Decided on April 5, 2011 Appellate Division, Second 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 on April 5, 2011
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
WILLIAM F. MASTRO, J.P.
PETER B. SKELOS
RUTH C. BALKIN
SHERI S. ROMAN, JJ.
2010-04209
(Index No. 13459/09)

[*1]In the Matter of Mark Malone, respondent,

v

Andrea Evans, etc., appellant.



 
Eric T. Schneiderman, Attorney General, New York, N.Y.
(Michael S. Belohlavek and Carol Fischer of counsel), for appellant.
Mark Malone, Beacon, N.Y., respondent pro se.

 
DECISION & ORDER

In a proceeding pursuant to CPLR article 78 to review a determination of the New York State Division of Parole dated March 19, 2009, which, after a hearing, denied the petitioner's application to be released to parole, the appeal is from a judgment of the Supreme Court, Orange County (Alfieri, J.), dated March 16, 2010, which granted the petition, annulled the determination, and remitted the matter to the New York State Division of Parole for a new hearing.

ORDERED that the judgment is affirmed, without costs or disbursements.

The New York State Division of Parole (hereinafter the Parole Board) is required to consider a number of statutory factors in determining whether an inmate should be released to parole (see Executive Law § 259-i; Matter of Huntley v Evans, 77 AD3d 945, 947; Matter of Miller v New York State Div. of Parole, 72 AD3d 690, 691). Although the Parole Board need not expressly discuss each of these factors in its determination, it is required to inform the inmate in writing of the factors and reasons for the denial of parole, and "[s]uch reasons shall be given in detail and not in conclusory terms" (Executive Law § 259-i[2][a]; see Matter of Mitchell v New York State Div. of Parole, 58 AD3d 742, 743). Here, the Parole Board's written decision indicated that its determination denying the petitioner's application for parole was based on the seriousness of the underlying offenses. "While the seriousness of the underlying offense remains acutely relevant in determining whether the petitioner should be released on parole, the record supports the petitioner's contention that the Parole Board failed to take other relevant statutory factors into account" (Matter of Mitchell v New York State Div. of Parole, 58 AD3d at 743; see Matter of Johnson v New York State Div. of Parole, 65 AD3d 838, 839; Matter of Wallman v Travis, 18 AD3d 304, 307-308). Accordingly, the Supreme Court properly granted the petition, annulled the determination, and remitted the matter to the Parole Board for a new hearing.
MASTRO, J.P., SKELOS, BALKIN and ROMAN, JJ., concur. [*2]

ENTER:

Matthew G. Kiernan

Clerk of the Court