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In re Applegate

Supreme Court of New York, Third Department

August 2, 2018

In the Matter of BRADFORD APPLEGATE, Appellant,
v.
NEW YORK STATE BOARD OF PAROLE, Respondent.

          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, JJ.

          MEMORANDUM AND ORDER

          PRITZKER, J.

         Appeal 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.

         Petitioner 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 [1991], lv denied 79 N.Y.2d 853');">79 N.Y.2d 853 [1992]). 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.

         We 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 [2018] [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 [2017]; Matter of Lewis v Stanford, 153 A.D.3d 1478, 1478-1479 [2017]; Matter of Crawford v New York State Bd. of Parole, 144 A.D.3d 1308, 1309 [2016], lv denied 29 N.Y.3d 901');">29 N.Y.3d 901 [2017]). 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 [2018]; Matter of Franza v Stanford, 155 A.D.3d 1291, 1291-1292 [2017], lv denied 30 N.Y.3d 911');">30 N.Y.3d 911 [2018]) [1]. 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 [2] [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 [2] [c] [A] [vii]) [2]. 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 [2014], appeal dismissed 24 N.Y.3d 1052');">24 N.Y.3d 1052 [2014]). 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]).

         Finally, 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 [2017]). 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.

         ORDERED that the judgment is affirmed, without costs.

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Notes:

[1] 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 [2014]). Further, the 2017 amendments to the governing regulation, 9 NYCRR ...


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