Opinion
21,806–16
02-09-2017
In the Matter of the Application of Cesar AGUAYO, Petitioner, v. Anthony ANNUCCI, Acting Commissioner, New York State Department of Corrections and Community Supervision, Respondent
For the Petitioner, WYOMING COUNTY–ATTICA LEGAL, AID BUREAU, INC., Norman P. Effman, Director For the Respondent, ERIC T. SCHNEIDERMAN, Attorney General, by Michael T. Feeley, Assistant Attorney General
For the Petitioner, WYOMING COUNTY–ATTICA LEGAL, AID BUREAU, INC., Norman P. Effman, Director
For the Respondent, ERIC T. SCHNEIDERMAN, Attorney General, by Michael T. Feeley, Assistant Attorney General
Michael M. Mohun, J.
By petition pursuant to Article 78 of the CPLR verified on December 9, 2016, Cesar Aguayo seeks review of a parole release hearing conducted on June 21, 2016, at the Attica Correctional Facility. The petitioner is represented by counsel assigned by the order to show cause dated December 12, 2016. The respondent requests that the petition be denied or dismissed upon the answer dated January 26, 2017, and the record of confidential information submitted to the Court.
The petition is without merit. The Board of Parole could cite as sufficient grounds for denying release the petitioner's instant offenses and his poor prison disciplinary record (see Matter of Fuchino v. Herbert , 255 AD2d 914 [4th Dept., 1998] ; Matter of Scott v. Russi , 208 AD2d 931 [2nd Dept., 1994] ; Matter of Putland v. Herbert , 231 AD2d 893 [4th Dept., 1996], motion for leave to appeal denied 89 NY2d 806 [1997] ; Matter of Salcedo v. Ross , 183 AD2d 771 [2nd Dept., 1992] ; People ex rel. Justice v. Russi , 226 AD2d 821 [3rd Dept., 1996] ). Furthermore, the commissioners had the discretion to weigh these negative factors heavily (Matter of Evans v. Perez , 76 AD3d 1130 [3rd Dept., 2010] ). They were not required to give equal weight to other, positive factors present in the petitioner's case ( Matter of Gordon v. New York State Board of Parole , 81 AD3d 1032 [3rd Dept., 2011] ; Matter of Davis v. Lemons , 73 AD3d 1354 [3rd Dept., 2010] ; Matter of Ristau v. Hammock , 103 AD2d 944 [3rd Dept., 1984], motion for leave to appeal denied 84 NY2d 910 [1984] ). In their decision, the commissioners sufficiently stated their reasons for denying parole (see, Matter of Sao–Pao v. Dennison , 11 NY3d 777 [2008] ). It was not necessary for them to discuss in detail every factor weighed in reaching the determination (see Matter of Mackall v. New York State Board of Parole , 91 AD2d 1023 [2nd Dept., 1983], motion for leave to appeal denied 58 NY2d 609 [1983] ; Matter of Davis v. New York State Division of Parole , 114 AD2d 412 [2nd Dept., 1985] ).
The Petitioner has not demonstrated that the Board failed to give fair consideration to all of the relevant statutory factors pursuant to Executive Law § 259–i(2)(c) (see Matter of Robles v. Fischer , 117 AD3d 1558 [4th Dept., 2014] ; Matter of Zane v. Travis , 231 AD2d 848 [4th Dept., 1996] ; People ex rel. Thomas v. Superintendent of Arthur Kill Correctional Facility , 124 AD2d 848 [2nd Dept., 1986], leave to appeal denied 69 NY2d 611 [1986] ). Thus, judicial intervention is precluded in this matter because the petitioner has failed to establish that the respondent's decision was made in violation of the law, or was not supported by the record and tainted by "irrationality bordering on impropriety" (see Matter of Russo v. New York State Division of Parole , 50 NY2d 69, 77 [1980] ; Matter of Despard v. Russi , 192 AD2d 1076 [4th Dept., 1993], motion for leave to appeal denied 82 NY2d 652 [1993] ; Matter of Robles v. Alexander , 70 AD3d 1338 [4th Dept., 2010] ).
NOW, THEREFORE , it is hereby
ORDERED that the petition is dismissed.