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Evans v. Dennison

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


July 1, 2010

IN THE MATTER OF BRYANT EVANS, APPELLANT,
v.
ROBERT DENNISON, AS CHAIR OF THE DIVISION OF PAROLE, RESPONDENT.

MEMORANDUM AND ORDER

Calendar Date: May 12, 2010

Before: Mercure, J.P., Rose, Malone Jr., McCarthy and Egan Jr., JJ.

Appeal from a judgment of the Supreme Court (Feldstein, J.), entered November 18, 2009 in Franklin County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of the Board of Parole denying his request for parole release.

In 1983, petitioner was convicted of manslaughter in the first degree, criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree. He was sentenced, respectively, to prison terms of 8a to 25 years, 5 to 15 years and 2a to 7 years, with the first and third sentences ordered to run consecutive to each other and concurrent with the second sentence. In January 2009, petitioner appeared before the Board of Parole, which denied his request for parole release and ordered him held an additional 24 months. He thereafter 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. The crux of petitioner's argument is that the Board failed to consider the parole recommendations contained in his sentencing minutes in denying him parole release. We note that, while the Board did not make specific mention of the sentencing minutes in rendering its determination, the record demonstrates that the minutes were before the Board, which is not required to specifically articulate each factor it has considered (see Matter of Serrano v Alexander, 70 AD3d 1099, 1100 [2010]; Matter of LaSalle v New York State Div. Of Parole, 69 AD3d 1252, 1253 [2010], lv denied 14 NY3d 709 [2010]). In any event, even had the Board failed to review the minutes, such error would have been harmless given that our review reveals that no parole recommendation was made (see Matter of Ruiz v New York State Div. Of Parole, 70 AD3d 1162, 1163 [2010]; Matter of Cruz v Alexander, 67 AD3d 1240, 1241 [2009]).

Petitioner's remaining contentions have been examined and determined to be without merit.

Mercure, J.P., Rose, Malone Jr., McCarthy and Egan Jr., JJ., concur.

ORDERED that the judgment is affirmed, without costs.

20100701

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