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In re Burress

Supreme Court of New York, Third Department

June 13, 2013

In the Matter of MICHAEL BURRESS, Appellant,
v.
ANDREA W. EVANS, as Chair of the Division of Parole, Respondent.

Calendar Date: May 20, 2013

Michael Burress, Wallkill, appellant pro se.

Eric T. Schneiderman, Attorney General, Albany (Kate H. Nepveu of counsel), for respondent.

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

MEMORANDUM AND ORDER

Appeal from a judgment of the Supreme Court (Melkonian, J.), entered September 20, 2012 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.

In 1979, petitioner was convicted of a number of crimes, the most serious of which was murder in the second degree, after he drove an associate to a hotel to commit a robbery and a police officer was fatally shot during the commission of the crime. Petitioner thereafter was sentenced to an aggregate term of 20 years to life in prison. In June 2011, petitioner reappeared before the Board of Parole seeking to be released to parole supervision. At the conclusion of the hearing, petitioner's request was denied and he was ordered held for an additional 24 months. That determination was affirmed upon administrative appeal, prompting petitioner to commence this CPLR article 78 proceeding. Following joinder of issue, Supreme Court dismissed the petition and this appeal ensued.

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 Dalton v Evans, 84 A.D.3d 1664, 1664 [2011]; Matter of Wright v Alexander, 71 A.D.3d 1270, 1271 [2010]). In making its decision, the Board is not required to articulate every statutory factor considered or give each factor equal weight (see Matter of Smith v New York State Div. of Parole, 81 A.D.3d 1026, 1026 [2011]; Matter of Wright v Alexander, 71 A.D.3d at 1271). Here, in addition to considering the serious nature of his crimes, the Board also took into account petitioner's prior criminal history, his recent prison disciplinary violation, his program accomplishments and his postrelease plans (see Matter of Rivera v New York State Div. of Parole, 95 A.D.3d 1586, 1587 [2012]; Matter of Mojica v Travis, 34 A.D.3d 1155, 1156 [2006]), as well as the underlying sentencing minutes (see Matter of Evans v Dennison, 75 A.D.3d 711, 712 [2010]). Moreover, contrary to petitioner's claim, the Board set forth in adequate detail the reasons for its denial of his request for release (see Matter of Comfort v New York State Div. of Parole, 68 A.D.3d 1295, 1296 [2009]; Matter of Martin v New York State Div. of Parole, 47 A.D.3d 1152, 1152 [2008]). Accordingly, as the Board's decision did not exhibit "'irrationality bordering upon impropriety'" (Matter of Silmon v Travis, 95 N.Y.2d 470, 476 [2000], quoting Matter of Russo v New York State Bd. of Parole, 50 N.Y.2d 69, 77 [1980]), we discern no basis upon which to disturb it. Petitioner's remaining contentions either have not been preserved for our review or are lacking in merit.

Peters, P.J., Rose, McCarthy and Egan Jr., JJ., concur.

ORDERED that the judgment is affirmed, without costs.


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