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In re Lashway

Supreme Court of New York, Third Department

October 31, 2013

In the Matter of STEVEN LASHWAY, Appellant,
v.
ANDREA EVANS, as Chair of the Division of Parole, Respondent.

Calendar Date: October 16, 2013.

Steven Lashway, Pine City, appellant pro se.

Eric T. Schneiderman, Attorney General, Albany (Laura Etlinger of counsel), for respondent.

Before: Rose, J.P., Stein, McCarthy and Garry, JJ.

MEMORANDUM AND ORDER

STEIN, J.

Appeal from a judgment of the Supreme Court (Gilpatric, J.), entered November 26, 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.

Petitioner was convicted of three counts of rape in the second degree in 1990, and was sentenced to an aggregate prison term of 10½ to 21 years. He was paroled in 2007 and civilly confined (Matter of State of New York v Lashaway, 100 A.D.3d 1372 [2012], lv denied 20 N.Y.3d 861 [2013]). Following his 2008 conviction for assault in the third degree, his parole was revoked and he was reincarcerated. Petitioner reappeared before the Board of Parole in 2011, which denied him re-release and ordered him held for an additional 24 months. He then commenced the present CPLR article 78 proceeding to challenge the Board's determination. Supreme Court dismissed the petition, and petitioner now appeals.

We perceive no basis upon which to disturb the Board's decision, and accordingly affirm. The Board appropriately considered the factors set forth in Executive Law § 259-i, including petitioner's criminal history and the nature of his crimes, prior parole violations, his prison disciplinary record, his institutional accomplishments and his postrelease plans (see Matter of Davis v Evans, 105 A.D.3d 1305, 1306 [2013]; Matter of Rodriguez v Evans, 102 A.D.3d 1049, 1050 [2013]). The Board is entitled to emphasize petitioner's criminal history over other factors, and its decision to do so does not demonstrate "irrationality bordering on impropriety" (Matter of Russo v New York State Bd. of Parole, 50 N.Y.2d 69, 77 [1980]; see Matter of Davis v Evans, 105 A.D.3d at 1306).

As a final matter, while the recent amendments to Executive Law § 259-c (4) applied to petitioner's hearing, Supreme Court properly rejected his arguments in regard thereto, inasmuch as he did not allege in what manner the Board failed to comply with such amendments (see Matter of Grossman v Rankin, 43 N.Y.2d 493, 502 [1977]; Matter of Pettus v Department of Correctional Servs., 72 A.D.3d 1375, 1376 [2010]; cf. Matter of Garfield v Evans, 108 A.D.3d 830, 830-831 [2013]).

Petitioner's remaining contentions have been considered and are unavailing.

Rose, J.P., McCarthy and Garry, JJ., concur.

ORDERED that the judgment is affirmed, without costs.


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