Opinion
2011-09-15
In the Matter of Vincent GOMEZ, Appellant,v.NEW YORK STATE DIVISION OF PAROLE, Respondent.
Vincent Gomez, Malone, appellant pro se.Eric T. Schneiderman, Attorney General, Albany (Victor Paladino of counsel), for respondent.
Vincent Gomez, Malone, appellant pro se.Eric T. Schneiderman, Attorney General, Albany (Victor Paladino of counsel), for respondent.
Appeal from a judgment of the Supreme Court (Feldstein, J.), entered December 20, 2010 in Franklin County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of the Board of Parole denying petitioner's request for parole release.
In 1989, petitioner pleaded guilty to murder in the second degree in connection with the killing of his brother and dismemberment of the body, and he is currently serving a term of 15 years to life in prison ( People v. Gomez, 192 A.D.2d 549, 596 N.Y.S.2d 439 [1993], lv. denied
82 N.Y.2d 806, 604 N.Y.S.2d 942, 624 N.E.2d 1037 [1993] ). In 2006, he made his second appearance before the Board of Parole seeking to be released to parole supervision, and the denial of this request was thereafter reversed on administrative appeal due to the Board's failure to consider the sentencing minutes. In February 2009, petitioner was scheduled for a de novo hearing at which the Board was to consider the sentencing minutes. The Board advised petitioner at the beginning of the hearing that the minutes had been destroyed in a flood, but he elected to proceed without them. At the conclusion of the hearing, his request for parole release was again denied and he was ordered held an additional 24 months. After the decision was upheld on administrative appeal, petitioner commenced this CPLR article 78 proceeding. Supreme Court dismissed the petition and this appeal ensued.
Respondent has advised that petitioner has obtained a six-month adjournment of his reappearance before the Board.
Petitioner contends that the Board effectively resentenced him by denying his request for parole release because he has served more than 15 years in prison, which was the minimum period of incarceration agreed to under the plea agreement. We find this claim to be without merit ( see Matter of Marsh v. New York State Div. of Parole, 31 A.D.3d 898, 898, 818 N.Y.S.2d 356 [2006] ). The minimum term of imprisonment under a plea agreement is not tantamount to a sentencing recommendation as petitioner implies. Moreover, notwithstanding the unavailability of the sentencing minutes, petitioner indicated a willingness to proceed with the de novo hearing that resulted in the most recent denial of his request for parole release. Contrary to his suggestion, the Board was not required by the statute to consider the plea minutes as well ( see Executive Law § 259–i[1][a]; [2][c][A] ). Upon reviewing the record, we conclude that the Board considered the relevant statutory factors set forth in Executive Law § 259–i ( see Matter of Kalwasinski v. Paterson, 80 A.D.3d 1065, 1065, 915 N.Y.S.2d 715 [2011], lv. denied 16 N.Y.3d 710, 2011 WL 1584775 [2011]; Matter of Vasquez v. New York State Executive Dept., Div. of Parole, 20 A.D.3d 668, 669, 797 N.Y.S.2d 655 [2005] ) and that its decision does not “exhibit ‘irrationality bordering on impropriety’ ” ( Matter of Silmon v. Travis, 95 N.Y.2d 470, 476, 718 N.Y.S.2d 704, 741 N.E.2d 501 [2000], quoting 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 [1980] ). Therefore, we find no reason to disturb it.
ORDERED that the judgment is affirmed, without costs.