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Matter of Gonzalez v. Dennison

Supreme Court of the State of New York, Albany County
Oct 26, 2007
2007 N.Y. Slip Op. 33501 (N.Y. Sup. Ct. 2007)

Opinion

0059222/0071.

October 26, 2007.

Ernesto Gonzalez, Petitioner Pro Se, Arthur Kill Correctional Facility, Staten Island, NY.

HON. ANDREW M. CUOMO, ESQ., New York State Attorney General, Attorney for Respondents, DAVID L. COCHRAN, of Counsel The Capitol, Albany, NY.


DECISION


Petitioner brings this CPLR Article 78 petition challenging the Respondents' denial of parole for the Petitioner. Respondents oppose the petition with an answer.

After a full review of this record, the court will dismiss the petition.

The Petitioner had his first parole hearing in April of 2004. The parole board denied parole and scheduled Petitioner's next parole hearing two years later. At Petitioner's next hearing, in April of 2006, the parole board again denied Petitioner parole and ordered him to be held for another two years before reconsideration of his parole. Petitioner contends that the decision of the parole board was arbitrary, capricious, bordering on impropriety, and not in accordance with the law or legislative intent of the law. Petitioner also contends that he did not have a full and proper parole hearing in April of 2006 because the hearing lasted less than fifteen minutes and only one of the three board members asked Petitioner questions.

Petitioner's administrative appeal relied on the grounds that denial of his application for parole was arbitrary and capricious. Arguments not raised in the administrative appeal are "unpreserved for review." See,Matter of Moore v. New York State Bd. of Parole, 233 A.D.2d 653. Therefore, this court will only address whether the denial of Petitioner's application for parole release was arbitrary and capricious. .

Petitioner alleges that the parole board did not consider his lack of prior criminal record, a clean twenty-seven year prison disciplinary record, positive parole plans, and recommendations for release. The decision of the parole board, however, stated specifically in its decision that although the board noted Petitioner's lack of a prior criminal record, excellent programming and disciplinary records, positive parole plans, and community support, releasing Petitioner at that time would "deprecate the seriousness" of the Petitioner's criminal acts and would "undermine respect for the law."

The board clearly considered all relevant factors here. The board, however, is not required to give equal weight to all of those factors.Cruz v. New York State Div. of Parole, 39 A.D.3d 1060, 1062, 833 N.Y.S.2d 311, 312 (3rd Dep't 2007). Here, the board placed more emphasis on the seriousness of the crime for which Petitioner is imprisoned, which is within the board's discretion. Id. Judicial review in an Article 78 proceeding serves to determine if there is a rational basis for the action sought to be reviewed. Clancy-Cullen Storage Co., Inc. V. Board of Elections in City of New York, 98 A.D.2d 635, 636, 469 N.Y.S. 894, 895 (1st Dept. 1983). It is not the function of the court to substitute its judgment for that of the body reviewed. Id. The board's written decision explained that all relevant information was considered and provided a rational basis for their decision. Therefore, this court finds that there was a rational basis for denying Petitioner's application for parole, and that the decision was not arbitrary or capricious.

The petition is dismissed.

All papers, including this Decision and Order are being returned to the attorneys for the Respondent. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel are not relieved from the applicable provisions of that section respecting filing, entry and notice of entry.

SO ORDERED!


Summaries of

Matter of Gonzalez v. Dennison

Supreme Court of the State of New York, Albany County
Oct 26, 2007
2007 N.Y. Slip Op. 33501 (N.Y. Sup. Ct. 2007)
Case details for

Matter of Gonzalez v. Dennison

Case Details

Full title:IN THE MATTER OF THE APPLICATION OF ERNESTO GONZALEZ, 80-A-4351…

Court:Supreme Court of the State of New York, Albany County

Date published: Oct 26, 2007

Citations

2007 N.Y. Slip Op. 33501 (N.Y. Sup. Ct. 2007)