Marszalek v. Stanford

152 A.D.3d 773

59 N.Y.S.3d 432

In the Matter of Mark MARSZALEK, appellant,

v.Tina STANFORD, etc., respondent.

2016-04545, Index No. 1936/15.

Supreme Court, Appellate Division, Second Department, New York.

July 26, 2017.

Mark Marszalek, Otisville, NY, appellant pro se.

Eric T. Schneiderman, Attorney General, New York, NY (Michael S. Belohlavek and David Lawrence III of counsel), for respondent.

MARK C. DILLON, J.P., JEFFREY A. COHEN, COLLEEN D. DUFFY, and FRANCESCA E. CONNOLLY, JJ.

In a proceeding pursuant to CPLR article 78 to review a determination of the New York State Board of Parole dated June 1, 2015, which, after a hearing, denied the petitioner's application to be released on parole, the petitioner appeals, as limited by his brief, from so much of an order and judgment (one paper) of the Supreme Court, Putnam County (Marx, J.), entered March 22, 2016, as, in effect, denied the petition and dismissed the proceeding.

ORDERED that the order and judgment is affirmed insofar as appealed from, without costs or disbursements.

Judicial review of a determination of the New York State Board of Parole (hereinafter the Parole Board) is narrowly circumscribed (see Matter of Briguglio v. New York State Bd. of Parole, 24 N.Y.2d 21, 29, 298 N.Y.S.2d 704, 246 N.E.2d 512 ; Matter of Esquilin v. New York State Bd. of Parole, 144 A.D.3d 797, 797, 40 N.Y.S.3d 279 ; Matter of Hardwick v. Dennison, 43 A.D.3d 406, 407, 840 N.Y.S.2d 425 ; Matter of Rhoden v. New York State Div. of Parole, 270 A.D.2d 550, 551, 704 N.Y.S.2d 521 ). A Parole Board determination to deny an early release may be set aside only where it evinces "irrationality bordering on impropriety" (Matter of Russo v. New York State Bd. of Parole, 50 N.Y.2d 69, 77, 427 N.Y.S.2d 982, 405 N.E.2d 225 ; see Matter of Silmon v. Travis, 95 N.Y.2d 470, 476, 718 N.Y.S.2d 704, 741 N.E.2d 501 ). Further, while the Parole Board is required to consider the relevant statutory factors (see Executive Law § 259–i[2][c] ) in reaching its determination, it is not required to address each factor in its decision or accord all of the factors equal weight (see Matter of LeGeros v. New York

State Bd. of Parole,

139 A.D.3d 1068, 1069, 30 N.Y.S.3d 834 ; Matter of

Thomches v. Evans, 108 A.D.3d 724, 968 N.Y.S.2d 888 ; Matter of

Samuel v. Alexander, 69 A.D.3d 861, 862, 892 N.Y.S.2d 557 ). In this case, the hearing record and the text of the subject determination establish that the requisite factors were properly considered by the respondent.

Since the petitioner failed to sustain his burden of demonstrating that the challenged determination was irrational, the Supreme Court correctly, in effect, denied the petition and dismissed the proceeding (see Matter of Marszalek v. Stanford, 124 A.D.3d 665, 997 N.Y.S.2d 910 ; Matter of Thomches v. Evans, 108 A.D.3d at 724–725, 968 N.Y.S.2d 888 ; Matter of Samuel v. Alexander, 69 A.D.3d at 862, 892 N.Y.S.2d 557 ; Matter of ...