Comfort v. New York State Division of Parole

68 A.D.3d 1295, 890 N.Y.2d 700

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 10, 2009
• Status: Published

Opinions

Rose, J.P.

Petitioner is currently serving an aggregate prison term of 2IV2 years to life arising out of his 1982 convictions for various drug offenses and attempted escape in the first degree. Following petitioner’s December 2007 appearance before the Board of Parole, his request for parole was denied and the Board ordered him held for an additional 24 months. When petitioner did not receive a response to his administrative appeal, he commenced this CPLR article 78 proceeding challenging the Board’s determination. Supreme Court dismissed the petition and this appeal followed.

We affirm. The record demonstrates that the Board appropriately considered the statutory factors, including the seriousness of petitioner’s crimes, his prior criminal history, positive program achievements while incarcerated and post-release plans (see Executive Law § 259-i [2] [c]; Matter of Valerio v New York State Div. of Parole, 59 AD3d 802, 803 [2009]; Matter of Brower v Alexander, 57 AD3d 1060, 1060 [2008], lv denied 12 NY3d 707 [2009]). The Board was not required to specifically articulate all of those factors in its decision, nor was it obliged to accord equal weight to each factor (see Matter of Brower v Alexander, 57 AD3d at 1060; Matter of Blasich v New York State Bd. of Parole, 48 AD3d 1029, 1029-1030 [2008]). Moreover, the Board did discuss several statutory factors in its decision and adequately explained its reasoning (see Matter of Mendez v New York State Bd. of Parole, 20 AD3d 742, 743 [2005]; cf. Matter of Vaello v Parole Bd. Div. of State of N.Y., 48 AD3d 1018, 1019-1020 [2008]). While the dissent minimizes the seriousness of petitioner’s offenses, describing them as “neither violent nor accompanied by a history of . . . violent crimes,” the record before the Board shows that petitioner had been a drug dealer for 10 years and that his activities escalated to high-level cocaine trafficking that did, in fact, directly lead to the violent death of one police officer and the grievous wounding of another at the hands of his codefendant brother. Contrary to the dissent’s view, the Board could reach its conclusion after weighing petitioner’s accomplishments in prison against the level of violence associated with such drug trafficking and the crimes of which he was convicted without improperly considering matters outside the record.

In any event, our role is not to assess whether the Board gave the proper weight to the relevant factors, but only whether the Board followed the statutory guidelines and rendered a determination that is supported, and not contradicted, by the facts in the record. Nor could we effectively review the Board’s weighing process, given that it is not required to state each factor that it considers, weigh each factor equally or grant parole as a reward for exemplary institutional behavior (see Matter of Marziale v Alexander, 62 AD3d 1227, 1227 [2009]; Matter of Barnes v New York State Div. of Parole, 53 AD3d 1012, 1012 [2008]; Matter of Valderrama v Travis, 19 AD3d 904, 905 [2005]). Accordingly, as the Board’s determination here is supported by the record and does not display “ ‘irrationality bordering on impropriety,’ ” we decline to disturb it (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]).

Petitioner’s remaining contention, that the Board’s decision amounted to resentencing, is without merit (see Matter of Marsh v New York State Div. of Parole, 31 AD3d 898, 898 [2006]).

Kane and McCarthy, JJ., concur.