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Matul v. Chair of the New York State Board of Parole

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


January 21, 2010

IN THE MATTER OF JOSE MATUL, APPELLANT,
v.
CHAIR OF THE NEW YORK STATE BOARD OF PAROLE, RESPONDENT.

MEMORANDUM AND ORDER

Calendar Date: November 30, 2009

Before: Mercure, J.P., Kavanagh, Stein, McCarthy and Garry, JJ.

Appeal from a judgment of the Supreme Court (McNamara, J.), rendered July 16, 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.

Petitioner was convicted in 1993 of arson in the first degree and was sentenced to 15 years to life in prison. In January 2008, he made his second appearance before the Board of Parole seeking parole release. At the conclusion of the hearing, the Board denied his request. After taking an administrative appeal, petitioner commenced this CPLR article 78 proceeding challenging the Board's determination. Following joinder of issue, Supreme Court dismissed the petition and petitioner now appeals.

We affirm. Contrary to petitioner's claim, the record discloses that the Board considered the appropriate statutory factors, including the seriousness of petitioner's crime, his prison disciplinary record, postrelease plans and possible deportation, in denying his request for parole release (see Executive Law § 259-i [2] [c] [A]; Matter of Hunter v New York State Div. of Parole, 21 AD3d 1178, 1178 [2005]). Notably, the Board was entitled to place greater emphasis on the serious nature of the crime than on the other statutory factors and was not required to articulate every factor considered in making its determination (see Matter of Karlin v Alexander, 57 AD3d 1156, 1157 [2008], lv denied 12 NY3d 704 [2009]; Matter of Garofolo v Dennison, 53 AD3d 734, 734-735 [2008]). Moreover, although petitioner criticizes the Board's failure to consider the sentencing minutes, they were unavailable, and proof in the record reveals that a diligent effort to obtain them had been made. In view of this, and given the absence of documentation indicating that any particular parole recommendation was made, the Board's failure to consider the minutes is not a basis for annulling its determination (see Matter of Blaisch v New York State Bd. of Parole, ___ AD3d ___, ___, 890 NYS2d 211, 212-213 [2009]; Matter of Freeman v Alexander, 65 AD3d 1429, 1430 [2009]; see also Matter of Porter v Alexander, 63 AD3d 945, 946 [2009]). Petitioner's remaining contentions have been considered and are unpersuasive. Accordingly, inasmuch as the Board's determination 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.

Mercure, J.P., Kavanagh, Stein, McCarthy and Garry, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

20100121

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