Calendar Date: December 17, 2012
Injah Tafari, Malone, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany (Kathleen M. Arnold of counsel), for respondent.
Before: Mercure, J.P., Rose, Stein, McCarthy and Garry, JJ.
MEMORANDUM AND ORDER
Appeal from a judgment of the Supreme Court (Feldstein, J.), entered October 26, 2012 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 petitioner's request for parole release.
In 1989, petitioner was convicted of two counts of robbery in the first degree and was sentenced to concurrent prison terms of 20 years to life. In 2010, following a retrial, petitioner was convicted of assault in the second degree (two counts), assault in the third degree and criminal mischief in the third degree, and was sentenced to a controlling determinate term of four years in prison, to be followed by five years of postrelease supervision, to run consecutively to the sentence he was then serving. In May 2011, he appeared before the Board of Parole seeking to be released to parole supervision. At the conclusion of the hearing, his request was denied and he was ordered held an additional 24 months. After the determination was affirmed on administrative appeal, petitioner commenced this CPLR article 78 proceeding challenging it. Following joinder of issue, Supreme Court dismissed the petition and petitioner now appeals.
It is well settled that parole release decisions are discretionary and will not be disturbed so long as the Board complied with the statutory requirements of Executive Law § 259-i (see Matter of Vaughn v Evans, 98 A.D.3d 1158, 1159 ; Matter of Nicoletta v New York State Div. of Parole, 74 A.D.3d 1609, 1609 , lv dismissed 15 N.Y.3d 867 ). Here, the record discloses that the Board complied with the statutory requirements by considering not only the serious nature of petitioner's crimes, but also his criminal history, extensive prison disciplinary record, program participation and postrelease plans (see Matter of Vigliotti v State of N.Y. Exec. Div. of Parole, 98 A.D.3d 789, 790 ; Matter of Valentino v Evans, 92 A.D.3d 1054, 1055 ). Petitioner claimed in his administrative appeal that the Board erroneously relied upon disciplinary violations that had been reversed and expunged from his institutional record, but the record discloses that petitioner had numerous disciplinary infractions, notwithstanding the expungement of a few, and the Board's conclusion that he "had a poor record of adjustment while in prison" was well supported. The remaining contentions raised in petitioner's memoranda to Supreme Court have not been preserved, due to his failure to raise them in his administrative appeal (see Matter of Santos v Evans, 81 A.D.3d 1059, 1060 ; Matter of Nicoletta v New York State Div. of Parole, 74 A.D.3d at 1610). Therefore, as the Board's decision does not exhibit "'irrationality bordering on impropriety'" (Matter of Silmon v Travis, 95 N.Y.2d 470, 476 , quoting Matter of Russo v New York State Bd. of Parole, 50 N.Y.2d 69, 77 ), we decline to disturb it.
Mercure, J.P., Rose, Stein, McCarthy and Garry, JJ., ...