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In the Matter of David Allen

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


March 17, 2011

IN THE MATTER OF DAVID ALLEN, APPELLANT, V ANDREA EVANS, AS CHAIR OF THE NEW YORK STATE DIVISION OF PAROLE, RESPONDENT.

Appeal from a judgment of the Supreme Court (Zwack, J.), entered July 19, 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.

The opinion of the court was delivered by: Egan Jr., JJ.

MEMORANDUM AND ORDER

Calendar Date: February 2, 2011

Before: Mercure, J.P., Spain, Lahtinen, McCarthy and

Petitioner was convicted of numerous crimes, including criminal sale of a controlled substance in the third degree, and was sentenced to an aggregate term of 2a to 20 years in prison. In July 2009, he made his second appearance before the Board of Parole seeking to be released to parole supervision. At the conclusion of the hearing, the Board denied his request and ordered him held an additional 24 months. Petitioner filed an administrative appeal and, when he did not receive a response within four months, he commenced this CPLR article 78 proceeding. Thereafter, Supreme Court dismissed the petition, resulting in this appeal.

We affirm. It is well established that parole release decisions are discretionary and will not be disturbed so long as the statutory requirements of Executive Law § 259-i are satisfied (see Matter of Nicoletta v New York State Div. of Parole, 74 AD3d 1609, 1609 [2010], lv dismissed 15 NY3d 867 [2010]; Matter of Wright v Alexander, 71 AD3d 1270, 1271 [2010]). Contrary to petitioner's claim, the record discloses that the Board considered the relevant statutory factors and followed the appropriate guidelines in denying his request for parole release. Specifically, the Board took into account the seriousness of petitioner's crimes, his lengthy criminal record, his prior prison disciplinary violations, his positive program accomplishments and his postrelease plans (see Matter of Brower v Alexander, 57 AD3d 1060, 1060 [2008], lv denied 12 NY3d 707 [2009]; Matter of Wise v New York State Div. of Parole, 54 AD3d 463, 464 [2008]). Petitioner's claim that the Board failed to consider his terminal illness has been raised for the first time in his brief and is not preserved (see Matter of Abbas v New York State Div. of Parole, 61 AD3d 1228, 1229 [2009]). Given that 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]), Supreme Court properly dismissed the petition.

Mercure, J.P., Spain, Lahtinen, McCarthy and Egan Jr., JJ., concur.

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20110317

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