Opinion
2014-06-19
In the Matter of Mohammed KHATIB, Appellant, v. NEW YORK STATE BOARD OF PAROLE, Respondent.
Mohammed Khatib, Otisville, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Frank Brady of counsel), for respondent.
Mohammed Khatib, Otisville, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Frank Brady of counsel), for respondent.
Before: LAHTINEN, J.P., McCARTHY, GARRY, EGAN JR. and CLARK, JJ.
Appeal from a judgment of the Supreme Court (Mercure, J.), entered September 26, 2013 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent denying his request for parole release.
In 2003, petitioner was convicted following a jury trial of four counts of conspiracy in the second degree and criminal possession of a firearm in the third degree after he hired a “hitman” to murder his former paramour and three of her family members. He was sentenced as a second felony offender to concurrent prison terms totaling 12 1/2 to 25 years, and his conviction was later upheld on appeal ( People v. Khatib, 81 A.D.3d 852, 916 N.Y.S.2d 234 [2011],lv. denied16 N.Y.3d 896, 926 N.Y.S.2d 32, 949 N.E.2d 980 [2011] ). In July 2012, petitioner appeared before respondent for the first time seeking to be released to parole supervision. At the conclusion of the hearing, his request was denied and he was ordered held for an additional 24 months. Petitioner took an administrative appeal, which apparently was not decided within four months, and then commenced this CPLR article 78 proceeding. Following joinder of issue, Supreme Court dismissed the petition and petitioner now appeals.
The Attorney General notes that because petitioner received a merit time allowance and was denied parole, his next appearance is determined by his parole eligibility date, which is on December 20, 2014.
Initially, it is well settled that parole release decisions are discretionary and will not be disturbed as long as respondent complied with the statutory requirements set forth in Executive Law § 259–i ( see Matter of Williams v. New York State Div. of Parole, 114 A.D.3d 992, 992, 979 N.Y.S.2d 868 [2014];Matter of Shark v. New York State Div. of Parole Chair, 110 A.D.3d 1134, 1134, 972 N.Y.S.2d 741 [2013],lv. dismissed23 N.Y.3d 933, 986 N.Y.S.2d 876, 10 N.E.3d 186 [2014] ). Contrary to petitioner's claim, the record discloses that respondent considered the relevant statutory factors in evaluating his request for parole release, including not only the serious nature of his crimes, but also his criminal history, his prison disciplinary record, the sentencing minutes, his program accomplishments and his postrelease plans ( see Matter of Martinez v. Evans, 108 A.D.3d 815, 816, 968 N.Y.S.2d 258 [2013];Matter of Santos v. Evans, 81 A.D.3d 1059, 1060, 916 N.Y.S.2d 325 [2011] ), as well as the statutorily-required COMPAS Risk and Needs Assessment instrument ( seeExecutive Law § 259–c [4]; see also Matter of Olmosperez v. Evans, 114 A.D.3d 1077, 980 N.Y.S.2d 845 [2014];Matter of Williams v. New York State Div. of Parole, 114 A.D.3d at 993, 979 N.Y.S.2d 868). We note that respondent was obligated to consider the serious nature of the crimes, as well as petitioner's lack of remorse and failure to accept responsibility ( see Matter of Partee v. Evans, 117 A.D.3d 1258, 1258, 984 N.Y.S.2d 894, 894 [2014];Matter of MacKenzie v. Evans, 95 A.D.3d 1613, 1614, 945 N.Y.S.2d 471 [2012],lv. denied,19 N.Y.3d 815, 2012 WL 5258825 [2012] ).
Petitioner further asserts that respondent's decision is defective because it is based on erroneous information consisting of a statement by a member of respondent that petitioner failed to cooperate with the District Attorney during the criminal prosecution. Even if this statement were inaccurate, we do not find it a basis for annulling the determination inasmuch as there is no indication in the record that respondent actually relied upon it in making its determination ( see Matter of Murray v. Evans, 83 A.D.3d 1320, 1321, 920 N.Y.S.2d 745 [2011];Matter of Restivo v. New York State Bd. of Parole, 70 A.D.3d 1096, 1097, 895 N.Y.S.2d 555 [2010] ), but rather, as noted above, it based its determination upon a multitude of other factors. We have considered petitioner's remaining arguments and find them to be unavailing. Given that respondent's determination 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] ), we find no reason to disturb it.
ORDERED that the judgment is affirmed, without costs.