Opinion
July 15, 1994
Appeal from the Supreme Court, Erie County, Cosgrove, J.
Present — Denman, P.J., Balio, Lawton, Fallon and Davis, JJ.
Appeal unanimously dismissed. Memorandum: This appeal from an April 1992 decision of the Board of Parole (Board) is moot. Assuming, arguendo, that petitioner were correct in his contention that the Board failed to consider adequately or properly the statutory factors governing release on parole, the appropriate remedy would be a remittal to the Board for a de novo hearing before a different panel (see, Matter of King v. New York State Div. of Parole, 190 A.D.2d 423, 434-435, affd 83 N.Y.2d 788). On April 13, 1994, a different panel of the Board denied a subsequent application by petitioner for release on parole. The appeal should be from that more recent determination.
Were we to reach the issues raised on this appeal, we would affirm. The Board determined that, despite his good institutional record, the gravity of the crime for which petitioner was convicted, murder in the second degree, and the manner in which it was committed were so egregious that the release of petitioner on parole would "so deprecate the seriousness of his crime as to undermine respect for law" (Executive Law § 259-i [c]). The Board is not required to state in its decision all of the factors that it considered in reaching that determination (Matter of King v. New York State Div. of Parole, 83 N.Y.2d 788, supra). The record reveals that the Board considered the relevant statutory factors (see, Executive Law § 259-i [c]; cf., Matter of Qafa v. Hammock, 80 A.D.2d 952), and its conclusion that the seriousness of the crime and the gruesome manner in which it was committed outweighed petitioner's good institutional record was not arbitrary and capricious (see, Matter of Bacon v. Hammock, 96 A.D.2d 557). There is no merit to the contention of petitioner that application of Executive Law § 259-i, which was enacted after the commission of the crime for which petitioner was incarcerated (see, L 1977, ch 904), violated the Ex Post Facto Clause of the US Constitution. The added statutory language requiring the Board to find that the release of an applicant "will not so deprecate the seriousness of his crime as to undermine respect for law" did not impose a new or additional obstacle to the granting of parole, but merely codified existing case law (see, e.g., Matter of Fusco v. Chairman, Bd. of Parole of State of N.Y., 59 A.D.2d 973, lv denied 43 N.Y.2d 648; Matter of Ittig v. New York State Bd. of Parole, 59 A.D.2d 972, lv denied 43 N.Y.2d 648).