COBOS v. DENNISON (2006)

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

Matter of Gino Rudolph COBOS, Petitioner-Appellant, et al., Petitioners, v. Robert DENNISON, Chairman, New York State Division of Parole, and State of New York, Respondents-Respondents.

Decided: November 17, 2006

PRESENT: KEHOE, J.P., MARTOCHE, SMITH, AND PINE, JJ.

Gino Rudolph Cobos, Petitioner-Appellant Pro Se. Eliot Spitzer, Attorney General, Albany (Frank Brady of Counsel), for Respondents-Respondents.

Petitioner Gino Rudolph Cobos contends that the standards for parole release determinations under Executive Law § 259-i are unconstitutional because they do not differentiate between adult offenders and offenders who committed crimes when they were less than 18 years of age, relying on Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1. The decision of the United States Supreme Court in Roper was limited to death penalty statutes as applied to juvenile offenders and we see no reason to apply the holding of Roper to parole release determinations. In any event, the statutory framework regarding discretionary parole decisions allows the Parole Board to consider “any mitigating and aggravating factors” associated with the offense and thus allows the Parole Board to consider an offender's juvenile status when making parole release determinations (§ 259-i[1][a]; see § 259-i[2][c] [A] ).

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM:

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