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In the Matter of Edwin v. andrea W. Evans

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


March 10, 2011

IN THE MATTER OF EDWIN RODRIGUEZ, APPELLANT,
v.
ANDREA W. EVANS, AS CHAIR OF THE DIVISION OF PAROLE, RESPONDENT.

Appeal from a judgment of the Supreme Court (Teresi, J.), entered July 23, 2010 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.

MEMORANDUM AND ORDER

Calendar Date: February 2, 2011

Before: Mercure, J.P., Rose, Lahtinen, Kavanagh and Garry, JJ.

Petitioner was convicted in 2007 of grand larceny in the first degree and sentenced to a prison term of 2 to 6 years. In May 2009, petitioner made his initial appearance before the Board of Parole seeking parole release. The Board denied his request and ordered him held for an additional 24 months. Petitioner filed an administrative appeal and, when a response was not received within four months, he commenced this CPLR article 78 proceeding. Supreme Court dismissed the petition and petitioner now appeals.

We affirm.

When reviewing an inmate's request for parole release, the Board must consider the relevant statutory factors, but it is not required to discuss every factor considered, nor to give each factor equal weight (see Matter of Nicoletta v New York State Div. of Parole, 74 AD3d 1609, 1610 [2010], lv dismissed 15 NY3d 867 [2010]; Matter of Gonzalez v Chair, N.Y. State Bd. of Parole, 72 AD3d 1368, 1369 [2010]). Here, the record demonstrates that the Board appropriately considered the statutorily required factors, such as petitioner's institutional accomplishments, release plans, earned eligibility certificate and prison disciplinary record, as well as his criminal history and the nature of his crime. We also reject petitioner's contention that the Board failed to adhere to the guidelines established by 9 NYCRR 8001.3, inasmuch as they are intended only as a guide and not as a substitute to careful consideration of the unique circumstances of each case (see Matter of Champion v Dennison, 40 AD3d 1181, 1182 [2007], lv dismissed 9 NY3d 913 [2007]; Matter of Lue-Shing v Travis, 12 AD3d 802, 803-804 [2004], lv denied 4 NY3d 705 [2005]). In light of the foregoing, we cannot conclude that the Board's decision denying petitioner's release exhibited "'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]).

Petitioner's remaining contentions have been examined and are either unpreserved or without merit.

Mercure, J.P., Rose, Lahtinen, Kavanagh and Garry, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20110310

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