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Davis v. Lemons

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


May 20, 2010

IN THE MATTER OF CLAUDE DAVIS JR., APPELLANT,
v.
HENRY LEMONS JR., AS ACTING CHAIR OF THE DIVISION OF PAROLE, RESPONDENT.

MEMORANDUM AND ORDER

Calendar Date: April 7, 2010

Before: Cardona, P.J., Peters, Lahtinen, Stein and Egan Jr., JJ.

Appeal from a judgment of the Supreme Court (Ceresia Jr., J.), entered July 1, 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 pleaded guilty to one count of identity theft in the first degree in satisfaction of numerous charges that he bilked various individuals out of money or property. He was sentenced as a second felony offender to a prison term of 3 to 6 years and made his first appearance before the Board of Parole in 2008. The Board denied his application and ordered him held for an additional 24 months. When petitioner did not receive a timely response to his administrative appeal, he commenced the present CPLR article 78 proceeding. Supreme Court dismissed the petition and this appeal ensued.

We now affirm. The Board considered the relevant factors in denying petitioner's application for parole, including the nature of the offense and his disciplinary record, receipt of an earned eligibility certificate and postrelease plans (see Executive Law § 259-i [2] [c] [A]; Matter of Hall v New York State Div. of Parole, 66 AD3d 1322, 1322 [2009]; Matter of Hopkins v New York State Bd. of Parole, 51 AD3d 1311, 1312 [2008]). The Board was not required to accord equal weight to each factor, however, and we cannot say that its decision to accord greater weight to petitioner's extensive criminal history was in any way irrational (see Matter of Allis v New York State Div. of Parole, 68 AD3d 1309, 1309-1310 [2009]; Matter of Hall v New York State Div. of Parole, 66 AD3d at 1322).

Lastly, the Board failed to consider petitioner's sentencing minutes, but a review of the minutes discloses that no recommendations were made with respect to parole at sentencing and, accordingly, the failure was harmless error (see Matter of Cruz v Alexander, 67 AD3d 1240, 1241 [2009]; Matter of Valerio v New York State Div. of Parole, 59 AD3d 802, 803 [2009]).

Cardona, P.J., Peters, Lahtinen, Stein and Egan Jr., JJ., concur.

ORDERED that the judgment is affirmed, without costs.

20100520

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