Almeyda v. New York State Division of Parole

290 A.D.2d 505, 736 N.Y.S.2d 275, 2002 N.Y. App. Div. LEXIS 501

Opinion

In a proceeding pursuant to CPLR article 78 to review a determination of the New York State Division of Parole, dated April 17, 2000, which, after a hearing, denied the petitioner’s request to be released on parole, the petitioner appeals from a judgment of the Supreme Court, Orange County (Peter C. Patsalos, J.), dated September 20, 2000, which denied the petition and dismissed the proceeding.

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

A determination by a parole board whether or not to grant parole is discretionary, and if made in accordance with the statutory factors, is not subject to judicial review absent “a showing of irrationality bordering an impropriety” (Matter of Russo v New York State Bd. of Parole, 50 NY2d 69, 77; see, Matter of Silmon v Travis, 95 NY2d 470; Matter of Thomas v New York State Div. of Parole, 286 AD2d 393, lv denied 97 NY2d 607; Executive Law § 259-i).

The New York State Division of Parole (hereinafter the Parole Board) rendered its determination after considering the full record including the petitioner’s institutional and educational achievements and his plans if released. The Parole Board’s determination that the petitioner’s positive achievements were outweighed by the serious and brutal nature of the offense, as well as the petitioner’s limited insight into why he committed the homicide, was rational and within its discretion, and is not subject to judicial review (see, Matter of Silmon v Travis, supra; Matter of Wright v Travis, 284 AD2d 544). Ritter, Acting P.J., Smith, Adams and Cozier, JJ., concur.