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Lazore v. Alexander

State of New York Supreme Court, Appellate Division Third Judicial Department


January 14, 2010

IN THE MATTER OF NOAH LAZORE, APPELLANT,
v.
GEORGE B. ALEXANDER, AS CHAIR OF THE NEW YORK STATE DIVISION OF PAROLE, RESPONDENT.

MEMORANDUM AND ORDER

Calendar Date: November 4, 2009

Before: Spain, J.P., Rose, Malone Jr., Kavanagh and Garry, JJ.

Appeal from a judgment of the Supreme Court (Cahill, J.), entered March 27, 2009 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.

In 1976, petitioner was convicted of murder in the second degree in the stabbing death of an elderly woman. He was sentenced to 20 years to life in prison. In June 2008, petitioner made his seventh appearance before the Board of Parole seeking parole release. His request was again denied and he was ordered held an additional 24 months. He filed an administrative appeal and, when he did not receive a timely response, he commenced this CPLR article 78 proceeding. Following joinder of issue, Supreme Court dismissed the petition and this appeal ensued.

Initially, we note that parole release decisions are discretionary and will not be disturbed if made in accordance with the statutory requirements set forth in Executive Law § 259-i (see Matter of Brower v Alexander, 57 AD3d 1060, 1060 [2008], lv denied 12 NY3d 707 [2009]; Matter of Carter v Dennison, 19 AD3d 974, 975 [2005]). Notably, the Board is not required to give each statutory factor equal weight and may place greater emphasis on the serious nature of a violent crime (see Matter of Smith v New York State Div. of Parole, 64 AD3d 1030, 1031 [2009]; Matter of MacKenzie v Dennison, 55 AD3d 1092, 1092 [2008]). Upon reviewing the record here, we find no merit to petitioner's claim that the Board failed to consider the relevant statutory factors in denying petitioner's request for parole release. Although the Board emphasized the violent nature of petitioner's crime, it also took into account petitioner's prison disciplinary record, his program accomplishments, his postrelease plans, as well as the positive letters written in support of his release (see e.g. Matter of Valerio v New York State Div. of Parole, 59 AD3d 802, 803 [2009]; Matter of Griffin v Dennison, 32 AD3d 1060, 1061 [2006]). Contrary to petitioner's claim, there is no indication that the Board was biased or that the parole hearing was unfair (see Matter of Smith v New York State Div. of Parole, 64 AD3d at 1031). Inasmuch as the Board's decision does not exhibit "'irrationality bordering on impropriety'" (Matter of Silmon v Travis, 95 NY2d 470, 476 [2000], quoting Matter of Russo v New York State Bd. of Parole, 50 NY2d 69, 77 [1980]), we find no reason to disturb it. Petitioner's remaining contentions have been considered and are unavailing.

Spain, J.P., Rose, Malone Jr., Kavanagh and Garry, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

20100114

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