Opinion
No. 504302.
November 6, 2008.
Appeal from a judgment of the Supreme Court (Stein, J.), entered February 25, 2008 in Albany 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.
Joseph Ponder, Alden, appellant pro se.
Andrew M. Cuomo, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.
Before: Mercure, J.P., Peters, Rose, Lahtinen and Kavanagh, JJ.
In 1996, petitioner was convicted of attempted murder in the second degree, assault in the first degree and criminal possession of a weapon in the second degree, and he was sentenced to an aggregate term of 8 1/3 to 25 years in prison. In December 2006, he made his third appearance before the Board of Parole for parole release. At the conclusion of the hearing, his request was denied and he was ordered held for an additional 24 months. After petitioner filed an administrative appeal, he commenced this CPLR article 78 proceeding. Following joinder of issue, Supreme Court dismissed the petition and this appeal ensued.
Preliminarily, we note that parole release determinations are not subject to judicial review if made in accordance with the statutory requirements of Executive Law § 259-i ( see Matter of Bottom v New York State Bd. of Parole, 30 AD3d 657, 657; Matter of Carter v Dennison, 19 AD3d 974, 974-975; Matter of Erdheim v Travis, 7 AD3d 876, 877), unless "there is a `showing of irrationality bordering on impropriety'" ( Matter of Silmon v Travis, 95 NY2d 470, 476, quoting Matter of Russo v New York State Bd. of Parole, 50 NY2d 69, 77). Petitioner's main contention on appeal is that the Board relied upon erroneous information in making its determination by referencing his conviction of murder in the second degree instead of attempted murder in the second degree. Although the hearing transcript discloses that the Board made this improper reference, the transcript further reveals that the Board properly characterized this conviction as attempted murder in the second degree both at the beginning of the hearing and in its final disposition. Inasmuch as it appears that the error was a mere oversight, we do not find that the Board relied on erroneous information requiring annulment of its determination ( see Matter of Davis v New York State Bd. of Parole, 35 AD3d 1112, 1113; Matter of Jones v New York State Div. of Parole, 24 AD3d 827, 828-829, lv dismissed 6 NY3d 826; cf. Matter of Lewis v Travis, 9 AD3d 800). Petitioner's further claim that the Board declined to take into account his rehabilitative progress is belied by the record inasmuch as the Board considered his program accomplishments. Notably, the Board was not required to specifically articulate each statutory factor considered or give each factor equal weight ( see Matter of Gamez v Dennison, 18 AD3d 1099, 1099; Matter of De La Cruz v Travis, 10 AD3d 789, 790). Petitioner's remaining contentions have been considered and are without merit. Therefore, we find no reason to disturb the Board's determination.
Ordered that the judgment is affirmed, without costs.