Calendar Date: June 8, 2018
Bradford Applegate, Beacon, appellant pro se.
Barbara D. Underwood, Attorney General, Albany (Kate H.
Nepveu of counsel), for respondent.
Before: McCarthy, J.P., Egan Jr., Lynch, Clark and Pritzker,
MEMORANDUM AND ORDER
from a judgment of the Supreme Court (Zwack, J.), entered
September 26, 2017 in Columbia County, which dismissed
petitioner's application, in a proceeding pursuant to
CPLR article 78, to review a determination of respondent
denying petitioner's request for parole release.
is currently serving an aggregate prison sentence of
26…“ years to life upon his 1989 conviction of
depraved indifference murder in the second degree and other
crimes (People v Applegate, 176 A.D.2d 888, 888
, lv denied 79 N.Y.2d 853');">79 N.Y.2d 853 ). The
convictions stem from his conduct while on probation in
beating a 22-year-old woman to death and dumping her weighted
body in a river, and then fleeing to another state
(id. at 888-889). Petitioner appeared before
respondent for his second appearance in November 2016. After
the hearing, respondent determined that release would not be
appropriate at that time and held petitioner for an
additional 24 months, and that determination was upheld on
administrative appeal. Petitioner commenced this CPLR article
78 proceeding seeking, among other relief, to annul that
determination. Supreme Court dismissed the petition in a
thorough written decision, and petitioner now appeals.
affirm. It is well-established that "parole release
decisions are discretionary and will not be disturbed as long
as [respondent] complied with the statutory requirements set
forth in Executive Law § 259-i and the determination
does not evince irrationality bordering on impropriety"
(Matter of Constant v Stanford, 157 A.D.3d 1175,
1175  [internal quotation marks and citations
omitted]). Contrary to petitioner's arguments, respondent
considered all of the relevant factors and was free to place
emphasis on the brutal nature of the crime and was not
required to give equal weight to each statutory factor in
denying petitioner's request (see Matter of Arena v
New State Dept. of Corr. & Community Supervision,
156 A.D.3d 1101, 1102 ; Matter of Lewis v
Stanford, 153 A.D.3d 1478, 1478-1479 ; 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 ).
Specifically, the record reflects that respondent also
expressly and appropriately considered other relevant
statutory factors, including the COMPAS Risk and Needs
Assessment instrument, petitioner's release plans and
family/community support, his positive program
accomplishments, his minimization of the crimes during the
appearance, the sentencing report and his prison disciplinary
record, which reflected commendable behavior reports, letters
of support and his criminal history (see Matter of
Peralta v New York State Bd. of Parole, 157 A.D.3d 1151,
1151 ; Matter of Franza v Stanford, 155 A.D.3d
1291, 1291-1292 , lv denied 30 N.Y.3d 911');">30 N.Y.3d 911
) . We further find that respondent
discussed many of the statutory factors in its decision and
provided sufficient detail to inform petitioner of the
reasons for the denial of parole (see Executive Law
§ 259-i  [a] [i]), and we find no error in its
consideration of a letter in opposition from the Nassau
County District Attorney, which was submitted in camera
(see Executive Law § 259-i  [c] [A] [vii])
. We have rejected the contention
raised by petitioner that respondent was required to adopt
regulations to implement the 2011 amendments to Executive Law
§ 259-c (4) regarding risk and needs assessments for
parole release determinations (see Matter of Montane v
Evans, 116 A.D.3d 197, 199-203 , appeal
dismissed 24 N.Y.3d 1052');">24 N.Y.3d 1052 ). As petitioner has not
demonstrated that respondent's decision is the result of
"irrationality bordering on impropriety," it will
not be disturbed (Matter of Peralta v New York State Bd.
of Parole, 157 A.D.3d at 1152 [internal quotation marks
and citations omitted]).
to the extent that petitioner seeks relief in the nature of a
writ of habeas corpus, were we to consider this CPLR article
78 proceeding as also a proceeding pursuant to CPLR article
70 (see CPLR 103 [a]), we would find that petitioner
has not demonstrated entitlement to immediate release and,
thus, habeas relief is unavailable (see People ex rel.
D'Amico v Lilley, 153 A.D.3d 1493, 1494-1495
). Petitioner's remaining claims have been examined
and, to the extent that they are preserved, have been found
lacking in merit.
McCarthy, J.P., Egan Jr., Lynch and Clark, JJ., concur.
that the judgment is affirmed, without costs.
 A transitional accountability plan was not
required given that petitioner was incarcerated years before
those requirements, which are prospective, went into effect
(see Correction Law § 71-a; Matter of
Rivera v New York State Div. of Parole, 119 A.D.3d 1107,
1108 ). Further, the 2017 amendments to the governing
regulation, 9 NYCRR ...