Moore v. New York State Board of Parole

Appellate Division of the Supreme Court of New York

Moore v. New York State Board of Parole

274 A.D.2d 886, 712 N.Y.S.2d 179, 2000 N.Y. App. Div. LEXIS 8277

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

DecidedJuly 27, 2000

StatusPublished

Cited by1 cases

This text of 274 A.D.2d 886 (Moore 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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Moore v. New York State Board of Parole, 274 A.D.2d 886, 712 N.Y.S.2d 179, 2000 N.Y. App. Div. LEXIS 8277 (N.Y. Ct. App. 2000).

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Opinion

—Cardona, P. J.

Appeal from a judgment of the Supreme Court (Kavanagh, J.), entered August 24, 1999 in Ulster County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent denying petitioner’s application for parole release.

[887]*887Petitioner was sentenced in 1963 to life in prison. As the result of a change in the law {see, Executive Law § 259-h), he became eligible for parole in 1982. Since that time, petitioner has made several applications for release on parole, all of which have been denied. His most recent application was rejected by respondent after considering, inter alia, the violent and heinous nature of his crime involving the strangulation death of a teenage girl and subsequent act of necrophilia committed shortly after being released from probation for another crime involving the molestation of two young girls. Respondent also considered petitioner’s educational achievements, postrelease plans and exemplary conduct while in prison in evaluating his application. Following respondent’s denial of the application, petitioner commenced this CPLR article 78 proceeding. Supreme Court dismissed the petition resulting in this appeal.

We affirm. We are unpersuaded by petitioner’s claim that his mental health status was the primary factor respondent should have considered in reviewing his application. Respondent is mandated to consider a variety of statutorily prescribed factors 'in making its determination (see, Executive Law § 259-i [1] [a]; [2] [c]; Matter of King v New York State Div. of Parole, 83 NY2d 788, 790-791). Inasmuch as the record reveals that respondent considered relevant statutory factors, its determination will not be disturbed (see, Matter of Anthony v New York State Div. of Parole, 252 AD2d 704, lv denied 92 NY2d 812, cert denied 525 US 1183; Matter of Flecha v Travis, 246 AD2d 720; People ex rel. McCormack v New York State Bd. of Parole, 244 AD2d 673).

Petitioner further contends that the repeal of Correction Law § 230 by the enactment of Executive Law § 259-h constitutes an impermissible ex post facto law. We previously considered that argument and found it to be without merit (see, Matter of Hagan v Coughlin, 100 AD2d 696). We have examined petitioner’s remaining contentions and find them unavailing.

Peters, Spain, Mugglin and Lahtinen, JJ., concur. Ordered that the judgment is affirmed, without costs.

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—Cardona, P. J.

Appeal from a judgment of the Supreme Court (Kavanagh, J.), entered August 24, 1999 in Ulster County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent denying petitioner’s application for parole release.

[887]*887Petitioner was sentenced in 1963 to life in prison. As the result of a change in the law {see, Executive Law § 259-h), he became eligible for parole in 1982. Since that time, petitioner has made several applications for release on parole, all of which have been denied. His most recent application was rejected by respondent after considering, inter alia, the violent and heinous nature of his crime involving the strangulation death of a teenage girl and subsequent act of necrophilia committed shortly after being released from probation for another crime involving the molestation of two young girls. Respondent also considered petitioner’s educational achievements, postrelease plans and exemplary conduct while in prison in evaluating his application. Following respondent’s denial of the application, petitioner commenced this CPLR article 78 proceeding. Supreme Court dismissed the petition resulting in this appeal.

We affirm. We are unpersuaded by petitioner’s claim that his mental health status was the primary factor respondent should have considered in reviewing his application. Respondent is mandated to consider a variety of statutorily prescribed factors 'in making its determination (see, Executive Law § 259-i [1] [a]; [2] [c]; Matter of King v New York State Div. of Parole, 83 NY2d 788, 790-791). Inasmuch as the record reveals that respondent considered relevant statutory factors, its determination will not be disturbed (see, Matter of Anthony v New York State Div. of Parole, 252 AD2d 704, lv denied 92 NY2d 812, cert denied 525 US 1183; Matter of Flecha v Travis, 246 AD2d 720; People ex rel. McCormack v New York State Bd. of Parole, 244 AD2d 673).

Petitioner further contends that the repeal of Correction Law § 230 by the enactment of Executive Law § 259-h constitutes an impermissible ex post facto law. We previously considered that argument and found it to be without merit (see, Matter of Hagan v Coughlin, 100 AD2d 696). We have examined petitioner’s remaining contentions and find them unavailing.

Peters, Spain, Mugglin and Lahtinen, JJ., concur. Ordered that the judgment is affirmed, without costs.

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274 A.D.2d 886, 712 N.Y.S.2d 179, 2000 N.Y. App. Div. LEXIS 8277, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moore-v-new-york-state-board-of-parole-nyappdiv-2000.

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