Flecha v. Russi

221 A.D.2d 780, 634 N.Y.S.2d 225, 1995 N.Y. App. Div. LEXIS 11784

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 16, 1995
• Status: Published

Opinion

—Appeal from a judgment of the Supreme Court (Bradley, J.), entered February 13, 1995 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.

Petitioner is a prison inmate serving consecutive terms of imprisonment of 3 to 9 years upon his plea of guilty to the crimes of rape in the first degree and sodomy in the first degree. Petitioner challenges the denial of his request for parole and argues, inter alia, that the Parole Board’s determination is arbitrary, capricious and reflects a bias against sex offenders. Notwithstanding petitioner’s receipt of a certificate of earned eligibility, the Board retained the discretion to determine whether release was appropriate (see, Matter of Walker v Russi, 176 AD2d 1185, 1186, Iv dismissed 79 NY2d 897). In denying petitioner’s request, the Board considered the nature of the crimes committed, the victims involved, the fact that petitioner fled to Puerto Rico after committing the crimes, petitioner’s failure to take responsibility for his deviant behavior and petitioner’s failure to seek treatment for his drug problem which he claimed was his excuse for committing the crimes. Based on these factors, the Board concluded that "there is a reasonable probability that [petitioner] would again violate the law” and, consequently, that petitioner’s release "is incompatible with the interest of society”. In view of this, we find that the Board’s determination is not arbitrary, capricious or discriminatory. We have considered petitioner’s remaining arguments and find them to be without merit.

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