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In re Martinez

Supreme Court of New York, Third Department

July 3, 2013

In the Matter of ROBERTO MARTINEZ, Appellant,
v.
ANDREA D. EVANS, as Chair of the New York State Division of Parole, Respondent.

Calendar Date: June 6, 2013

Appeal from a judgment of the Supreme Court (Cahill, J.), entered August 17, 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.

Roberto Martinez, Woodbourne, appellant pro se.

Eric T. Schneiderman, Attorney General, Albany (Frank K. Walsh of counsel), for respondent.

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

MEMORANDUM AND ORDER

In 1998, petitioner pleaded guilty to manslaughter in the first degree for fatally shooting his wife's paramour. He was sentenced to 12½ to 25 years in prison. In June 2011, he made his second appearance before the Board of Parole seeking to be released to parole supervision. Following a 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. Supreme Court subsequently dismissed the petition and this appeal ensued.

We affirm. Parole release determinations are discretionary and will not be set aside so long as the Board complied with the statutory requirements of Executive Law § 259-i (see Matter of Tafari v Evans, 102 A.D.3d 1053, 1053 [2013], lv denied 21 N.Y.3d 852 [2013]; Matter of Amen v New York State Div. of Parole, 100 A.D.3d 1230, 1230 [2012]). The Board is not required to articulate every statutory factor it considered in making its decision nor is it required to give each factor equal weight (see Matter of Vigliotti v State of New York Executive Div. of Parole, 98 A.D.3d 789, 790 [2012], lv dismissed 20 N.Y.3d 1034 [2013]). The record here reveals that, in denying his request for parole release, the Board considered the relevant statutory factors, including the serious nature of petitioner's crime, his otherwise clean criminal history, his relatively good prison disciplinary record, his program accomplishments and his postrelease plans (see Matter of Vaughn v Evans, 98 A.D.3d 1158, 1159 [2012]; Matter of MacKenzie v Evans, 95 A.D.3d 1613, 1614 [2012], lv denied 19 N.Y.3d 815 [2012]). Contrary to petitioner's claim, the Board also considered the sentencing minutes (see Matter of Evans v Dennison, 75 A.D.3d 711, 712 [2010]). Moreover, the Board was entitled to place greater emphasis upon the serious nature of the crime than the other factors (see Matter of Vigliotti v State of New York Executive Div. of Parole, 98 A.D.3d at 790; Matter of McKenzie v Evans, 95 A.D.3d at 1614). The Board's reference to the crime having been committed "with malice" pertains to its interpretation of the circumstances of the crime and does not establish that the Board relied upon erroneous information (see Matter of Rodriguez v Evans, 102 A.D.3d 1049, 1050 [2013]; Matter of Parmes v Travis, 17 A.D.3d 885, 886 [2005]). In sum, given that the Board's decision does not evince "'irrationality bordering on 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 find no reason to disturb it.

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

ORDERED that the judgment is affirmed, without costs.


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