Opinion
04-27-2017
In the Matter of Wilfredo RIVERA, Appellant, v. Tina M. STANFORD, as Chair of the Board of Parole, Respondent.
Wilfredo Rivera, Woodbourne, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Kate H. Nepveu of counsel), for respondent.
Wilfredo Rivera, Woodbourne, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany (Kate H. Nepveu of counsel), for respondent.
Before: PETERS, P.J., GARRY, EGAN JR., CLARK and AARONS, JJ.
Appeal from a judgment of the Supreme Court (LaBuda, J.), entered July 11, 2016 in Sullivan 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 1987, petitioner was convicted of murder in the second degree after he fatally shot an innocent bystander during an altercation with a drug dealer. He was sentenced to 25 years to life in prison. In September 2015, petitioner made his fourth appearance before the Board of Parole seeking to be released to parole supervision. Following a hearing, his request was denied and he was ordered held an additional 24 months. After the decision was affirmed on administrative appeal, petitioner commenced this CPLR article 78 proceeding challenging it. Following joinder of issue, Supreme Court dismissed the petition and petitioner now appeals.
Initially, it is well settled that parole release decisions are discretionary and will not be disturbed so long as the Board complied with the statutory requirements set forth in Executive Law § 259–i (see Matter of Wiley v. State of N.Y. Dept. of Corr. & Community Supervision, 139 A.D.3d 1289, 1289, 32 N.Y.S.3d 370 [2016] ; Matter of Furman v. Annucci, 138 A.D.3d 1269, 1270, 28 N.Y.S.3d 352 [2016], lv. dismissed 27 N.Y.3d 1188, 38 N.Y.S.3d 97, 59 N.E.3d 1209 [2016] ). Contrary to petitioner's claim, the Board here did not base its decision solely on the serious nature of his crime, but also took into account other relevant statutory factors including his criminal record, disciplinary history, program and educational accomplishments and postrelease plans, as well as the sentencing minutes and the COMPAS Risk and Needs Assessment instrument (see Matter of Hill v. New York State Bd. of Parole, 130 A.D.3d 1130, 1130–1131, 14 N.Y.S.3d 515 [2015] ; Matter of Diaz v. New York State Dept. of Corrections & Community Supervision, l27 A.D.3d 1493, 1494, 7 N.Y.S.3d 690 [2015] ). The Board was not required to give each statutory factor equal weight and was entitled to place greater emphasis on the severity of petitioner's crime (see Matter of Furman v. Annucci, 138 A.D.3d at 1270, 28 N.Y.S.3d 352 ; Matter of King v. Stanford, 137 A.D.3d 1396, 1397, 26 N.Y.S.3d 815 [2016] ). Moreover, we find no merit to petitioner's claim that the Board based its decision on erroneous information. Although a Board member made a misstatement during the parole interview that petitioner's conviction was the result of a guilty plea, petitioner did not object and, in any event, the misstatement did not alter the grave nature of his underlying conviction, which was relevant to the Board's decision (see Matter of Rodriguez v. Evans, 102 A.D.3d 1049, 1050, 958 N.Y.S.2d 529 [2013] ; see also Matter of Sutherland v. Evans, 82 A.D.3d 1428, 1429, 918 N.Y.S.2d 679 [2011] ). Given that the Board's 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] ), we find no reason to disturb it.
We have reviewed petitioner's numerous remaining contentions and find them to be unavailing.
ORDERED that the judgment is affirmed, without costs.