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In the Matter of Johnny Reed v. andrea D. Evans

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


April 19, 2012

IN THE MATTER OF JOHNNY REED, APPELLANT,
v.
ANDREA D. EVANS, AS CHAIR OF THE DIVISION OF PAROLE, RESPONDENT.

Appeal from a judgment of the Supreme Court (McGrath, J.), entered August 24, 2011 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 21, 2012

Before: Mercure, J.P., Lahtinen, Spain, Stein and Egan Jr., JJ.

We cannot say that the Board of Parole failed to comply with statutory requirements in rendering its determination denying petitioner's request for parole release. A review of the record establishes that the Board considered the appropriate statutory factors, including petitioner's program achievements, receipt of an earned eligibility certificate and positive disciplinary record since his last appearance before the Board. The Board, as required, also considered petitioner's plans upon release, extensive criminal history and instant offense of forgery and drug possession. The fact that the Board did not "recite the precise statutory language of . . . Executive Law § 259-i (2) (c) (A) in support of its conclusion to deny parole" does not, as urged by petitioner, undermine its conclusion (Matter of Silvero v Dennison, 28 AD3d 859, 860 [2006]). Inasmuch as petitioner has not established that the Board's determination is tainted by "'irrationality bordering on impropriety,'" judicial intervention is not warranted (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]; see Matter of Silvero v Dennison, 28 AD3d at 860; Matter of James v Chairman of N.Y. State Div. of Parole, 19 AD3d 857, 858 [2005]). Accordingly, the Board's decision will not be disturbed. Petitioner's remaining contentions have been reviewed and found to be without merit.

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

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court

20120419

© 1992-2012 VersusLaw Inc.



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