Calendar Date: June 12, 2017
Gonzalvo, Woodbourne, appellant pro se.
T. Schneiderman, Attorney General, Albany (Frank Brady of
counsel), for respondent.
Before: Garry, J.P., Lynch, Clark, Aarons and Pritzker, JJ.
MEMORANDUM AND ORDER
from a judgment of the Supreme Court (Schick, J.), entered
December 13, 2016 in Sullivan 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.
1997, petitioner was convicted of murder in the first degree
- committed during his second term of parole - and he was
sentenced to 20 years to life in prison. In February 2016, he
made his initial appearance 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 for an additional 24 months. Following an
unsuccessful administrative appeal, petitioner commenced this
CPLR article 78 proceeding challenging the denial. After
respondent served an answer, Supreme Court dismissed the
petition and this appeal ensued.
we find no merit to petitioner's claim that, in denying
his request for parole release, the Board relied on erroneous
information that he killed a police officer. The record
reveals that although there was some confusion at the start
of the hearing over the circumstances of petitioner's
crimes, the District Attorney's office provided corrected
information that petitioner had killed a civilian, not a
police officer, and this was specifically noted during the
hearing. Thus, there is no indication that the Board relied
on incorrect information in denying petitioner's request
(see Matter of Perea v Stanford, 149 A.D.3d 1392,
1393 ; Matter of Veras v New York State Div. of
Parole, 56 A.D.3d 878, 879 ). Rather, the Board
considered and applied the relevant statutory and regulatory
factors, including the serious nature of petitioner's
crimes, his criminal history, his substance abuse history and
risk of future drug abuse, his prison disciplinary record,
his program accomplishments, his postrelease plans and the
inconsistent sentencing minutes (see Executive Law
§ 259-i  [c] [A]; 9 NYCRR 8002.3; Matter of Mays
v Stanford, 150 A.D.3d 1521, 1522 ; Matter of
Betancourt v Stanford, 148 A.D.3d 1497, 1497-1498
). Consistent with the provisions of 9 NYCRR 8002.3 (a)
(11) and (12), the Board also took into account the COMPAS
Risk and Needs Assessment instrument, as well as the
transitional accountability plan, and was not required to
give these considerations any greater weight than the other
relevant factors (see e.g. Matter of Mays v
Stanford, 150 A.D.3d at 1522 ; Matter of
Crawford v New York State Bd. of Parole, 144 A.D.3d
1308, 1309 , lv denied 29 N.Y.3d 901');">29 N.Y.3d 901 )
. Furthermore, we are not persuaded
that the Board's commissioners who were present during
the hearing exhibited bias toward petitioner or predetermined
the outcome of the hearing (see Matter of Hernandez v
McSherry, 271 A.D.2d 777, 778 , lv denied
95 N.Y.2d 769');">95 N.Y.2d 769 ). Inasmuch as the Board's decision
does not evince "'irrationality bordering on
impropriety'" (Matter of Partee v Evans,
117 A.D.3d 1258, 1259 , lv denied 24 N.Y.3d
901 , quoting Matter of Russo v New York State Bd.
of Parole, 50 N.Y.2d 69, 77 ), we find no reason
to disturb it.
J.P., Lynch, Clark, Aarons and Pritzker, JJ., concur.
that the judgment is affirmed, without costs.
 Although a transitional accountability
plan was prepared for petitioner, one was not required as
petitioner was admitted to prison well before the effective
date of the legislation imposing this requirement (see
Matter of Wiley v State of N.Y. Dept. of Corr. &