Ek v. New York State Board of Parole

Appellate Division of the Supreme Court of New York

Ek v. New York State Board of Parole

307 A.D.2d 433, 761 N.Y.S.2d 553, 2003 N.Y. App. Div. LEXIS 7724

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 3, 2003

StatusPublished

Cited by9 cases

This text of 307 A.D.2d 433 (Ek v. New York State Board of Parole) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Ek v. New York State Board of Parole, 307 A.D.2d 433, 761 N.Y.S.2d 553, 2003 N.Y. App. Div. LEXIS 7724 (N.Y. Ct. App. 2003).

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Opinion

Appeal from a judgment of the Supreme Court (Teresi, J.), entered August 26, 2002 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent denying petitioner’s request for parole release.

Petitioner is currently serving a prison sentence of 20 years to life following his 1976 conviction of murder in the second degree. Petitioner’s conviction arose out of an armed robbery at the home of a drug dealer where petitioner and his codefendants terrorized a 67-year-old man, his wife, son and two granddaughters. When the demand for money was not forthcoming, a struggle ensued resulting in the 67-year-old man being shot and killed. In August 2001, petitioner made his fourth appearance before respondent and his application for parole release was again denied. Supreme Court dismissed petitioner’s subsequent CPLR article 78 proceeding and this appeal ensued.

Notwithstanding petitioner’s contention to the contrary, our review of the record reveals that respondent considered the relevant statutory factors in denying petitioner’s request for parole release {see Executive Law § 259-i; see also Matter of Williams v Travis, 284 AD2d 823 [2001]; Matter of Johnson v Travis, 284 AD2d 686 [2001]). Although respondent placed particular emphasis on the seriousness of petitioner’s crime and his criminal history, respondent was not required to expressly discuss or give equal weight to each factor it [434]*434considered in rendering its determination (see Matter of Felder v Travis, 278 AD2d 570 [2000]; Matter of Henderson v Travis, 268 AD2d 633, 634 [2000], lv denied 95 NY2d 754 [2000]). In any event, a review of the record reveals that respondent considered petitioner’s positive achievements while imprisoned, the absence of any disciplinary violations since his last parole appearance and his plans upon release. Inasmuch as the record fails to demonstrate that the discretionary determination was affected by irrationality bordering on impropriety, it will not be disturbed (see Matter of Trobiano v State of New York Div. of Parole, 285 AD2d 812 [2001], lv denied 97 NY2d 607 [2001]).

Cardona, P.J., Mercure, Crew III, Peters and Spain, JJ., concur. Ordered that the judgment is affirmed, without costs.

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Appeal from a judgment of the Supreme Court (Teresi, J.), entered August 26, 2002 in Albany County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent denying petitioner’s request for parole release.

Petitioner is currently serving a prison sentence of 20 years to life following his 1976 conviction of murder in the second degree. Petitioner’s conviction arose out of an armed robbery at the home of a drug dealer where petitioner and his codefendants terrorized a 67-year-old man, his wife, son and two granddaughters. When the demand for money was not forthcoming, a struggle ensued resulting in the 67-year-old man being shot and killed. In August 2001, petitioner made his fourth appearance before respondent and his application for parole release was again denied. Supreme Court dismissed petitioner’s subsequent CPLR article 78 proceeding and this appeal ensued.

Notwithstanding petitioner’s contention to the contrary, our review of the record reveals that respondent considered the relevant statutory factors in denying petitioner’s request for parole release {see Executive Law § 259-i; see also Matter of Williams v Travis, 284 AD2d 823 [2001]; Matter of Johnson v Travis, 284 AD2d 686 [2001]). Although respondent placed particular emphasis on the seriousness of petitioner’s crime and his criminal history, respondent was not required to expressly discuss or give equal weight to each factor it [434]*434considered in rendering its determination (see Matter of Felder v Travis, 278 AD2d 570 [2000]; Matter of Henderson v Travis, 268 AD2d 633, 634 [2000], lv denied 95 NY2d 754 [2000]). In any event, a review of the record reveals that respondent considered petitioner’s positive achievements while imprisoned, the absence of any disciplinary violations since his last parole appearance and his plans upon release. Inasmuch as the record fails to demonstrate that the discretionary determination was affected by irrationality bordering on impropriety, it will not be disturbed (see Matter of Trobiano v State of New York Div. of Parole, 285 AD2d 812 [2001], lv denied 97 NY2d 607 [2001]).

Cardona, P.J., Mercure, Crew III, Peters and Spain, JJ., concur. Ordered that the judgment is affirmed, without costs.

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307 A.D.2d 433, 761 N.Y.S.2d 553, 2003 N.Y. App. Div. LEXIS 7724, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ek-v-new-york-state-board-of-parole-nyappdiv-2003.

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