Opinion
2014-05-9
In the Matter of Richard ROBLES, Petitioner–Appellant, v. Brian FISCHER, Commissioner, New York State Department of Corrections and Community Supervision, Respondent–Respondent.
Wyoming County–Attica Legal Aid Bureau, Warsaw (Adam W. Koch of Counsel), for Petitioner–Appellant. Eric T. Schneiderman, Attorney General, Albany (Victor Paladino of Counsel), for Respondent–Respondent.
Wyoming County–Attica Legal Aid Bureau, Warsaw (Adam W. Koch of Counsel), for Petitioner–Appellant. Eric T. Schneiderman, Attorney General, Albany (Victor Paladino of Counsel), for Respondent–Respondent.
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, SCONIERS, and VALENTINO, JJ.
MEMORANDUM:
Petitioner appeals from a judgment dismissing his petition pursuant to CPLR article 78 seeking to annul the determination of the New York State Division of Parole (Parole Board) in May 2012, denying him parole release. We agree with petitioner that his appeal is not moot inasmuch as the determination has not expired during the pendency of this appeal, and he has not reappeared before the Parole Board ( cf. Matter of Robles v. Evans, 100 A.D.3d 1455, 1455, 953 N.Y.S.2d 534). We nevertheless reject the contention of petitioner that Supreme Court erred in determining that the Parole Board properly denied parole release. “Discretionary release on parole shall not be granted merely as a reward for good conduct or efficient performance of duties while confined” (Executive Law § 259–i[2][c][A]; see Matter of Silmon v. Travis, 95 N.Y.2d 470, 476, 718 N.Y.S.2d 704, 741 N.E.2d 501). We conclude that the record establishes that the Parole Board considered the relevant factors in determining that petitioner's release would be incompatible with the welfare of society and would so deprecate the serious nature of his crimes as to undermine respect for the law ( see§ 259–i[c] [A] ), and petitioner has made no “ ‘showing of irrationality bordering on impropriety’ ” to warrant judicial intervention ( Silmon, 95 N.Y.2d at 476, 718 N.Y.S.2d 704, 741 N.E.2d 501;see Matter of Russo v. New York State Bd. of Parole, 50 N.Y.2d 69, 77, 427 N.Y.S.2d 982, 405 N.E.2d 225;Matter of Montane v. Evans, 116 A.D.3d 197, ––––, 981 N.Y.S.2d 866 [2014] ). We further conclude that the Parole Board properly considered the COMPAS instrument, which was “intended to bring the [Parole] Board into compliance with recent amendments” to section 259–c (4) of the Executive Law ( see Matter of Malerba v. Evans, 109 A.D.3d 1067, 1067, 971 N.Y.S.2d 593,lv. denied22 N.Y.3d 858, 2014 WL 112595). We reject petitioner's further contention that the court erred in determining that, under the circumstances presented here, the Parole Board was not required to consider his sentencing minutes. The record establishes that petitioner's sentencing minutes-from 1966–are unavailable ( see Matter of Freeman v. Alexander, 65 A.D.3d 1429, 1430, 885 N.Y.S.2d 379).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.