Calendar Date: May 6, 2013
Hardeep Singh, Gowanda, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany (Zainab A. Chaudhry of counsel), for respondent.
Before: Lahtinen, J.P., Stein, McCarthy and Egan Jr., JJ.
MEMORANDUM AND ORDER
Appeal from a judgment of the Supreme Court (Feldstein, J.), entered September 12, 2012 in Clinton 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 2008, petitioner was convicted of manslaughter in the second degree and three counts of assault in the third degree and was sentenced to various concurrent prison terms, the greatest of which was 3⅓ to 10 years. Petitioner made his initial appearance before the Board of Parole in September 2011, at which time the Board declined to release him to parole supervision and ordered him held for an additional 24 months. The determination was upheld on administrative appeal and petitioner thereafter commenced this proceeding pursuant to CPLR article 78. Supreme Court dismissed the petition and petitioner now appeals.
We affirm. Initially, contrary to petitioner's contention, inasmuch as the effective date of the 2011 amendment to Executive Law § 259-c (4) (see L 2011, ch 62, § 1, part C, § 1, subpart A, §§ 38-b, 49 [f]) postdated petitioner's parole hearing, the new procedural requirements contained in such amendment did not apply here (see Matter of Davidson v Evans, 104 A.D.3d 1046 ; see also Matter of Ramos v Heath, 106 A.D.3d 747, ___, 964 N.Y.S.2d 257, 258 ; Matter of Hamilton v New York State Div. of Parole, 36 Misc.3d 440, 442-443 , appeal dismissed 101 A.D.3d 1549 ). Furthermore, the record demonstrates that the Board appropriately considered the statutory factors set forth in Executive Law § 259-i, including the seriousness of petitioner's crimes, his positive institutional record, his program accomplishments, his earned eligibility certificate and his postrelease plans (see Matter of Tafari v Evans, 102 A.D.3d 1053, 1054 , lv denied 21 N.Y.3d 852 ; Matter of Rodriguez v Evans, 82 A.D.3d 1397, 1398 ; Matter of Nicoletta v New York State Div. of Parole, 74 A.D.3d 1609, 1609 , lv dismissed 15 N.Y.3d 867 ). Although the Board's decision contained a factual misstatement, there is no indication that the decision was affected by the discrepancy in a meaningful way (see Matter of Morrison v Evans, 81 A.D.3d 1073, 1073-1074 ; Matter of Ponder v Alexander, 56 A.D.3d 848, 849 ). Inasmuch as the Board's decision does not exhibit "irrationality bordering on impropriety, " we discern no basis upon which to disturb it (Matter of Russo v New York State Bd. of Parole, 50 N.Y.2d 69, 77 ; see Matter of Tafari v Evans, 102 A.D.3d at 1054).
Lahtinen, J.P., Stein, McCarthy and Egan Jr., JJ., ...