IN RE: GENARO DELACRUZ

Reset A A Font size: Print

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

IN RE: GENARO DELACRUZ, PETITIONER–APPELLANT, v. ANTHONY ANNUCCI, ACTING COMMISSIONER, NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, RESPONDENT–RESPONDENT.

CA 14–00061

Decided: November 21, 2014

PRESENT:  SCUDDER, P.J., SMITH, PERADOTTO, CARNI, AND SCONIERS, JJ. WYOMING COUNTY–ATTICA LEGAL AID BUREAU, WARSAW (LEAH R. NOWOTARSKI OF COUNSEL), FOR PETITIONER–APPELLANT. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (VICTOR PALADINO OF COUNSEL), FOR RESPONDENT–RESPONDENT.

MEMORANDUM AND ORDER

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

Memorandum:  Petitioner appeals from a judgment dismissing his petition pursuant to CPLR article 78 seeking to annul the determination of the Parole Board (Board) denying him parole release.   We agree with petitioner that his appeal is not moot inasmuch as the determination has not expired during the pendency of this appeal, and he has not reappeared before the Board (cf.   Matter of Robles v. Evans, 100 AD3d 1455, 1455).   We nevertheless reject petitioner's contention that Supreme Court erred in determining that the Board properly denied parole release.  “It is well settled that parole release decisions are discretionary and will not be disturbed so long as the Board complied with the statutory requirements enumerated in Executive Law § 259–i” (Matter of Gssime v New York State Div. of Parole, 84 AD3d 1630, 1631, lv dismissed 17 NY3d 847;  see Matter of Johnson v New York State Div. of Parole, 65 AD3d 838, 839;  see generally Matter of King v New York State Div. of Parole, 83 N.Y.2d 788, 790–791).   The Board is “not required to give equal weight to each of the statutory factors” but, rather, may “place [ ] greater emphasis on the severity of the crimes than on the other statutory factors” (Matter of MacKenzie v. Evans, 95 AD3d 1613, 1614, lv. denied 19 NY3d 815).

We conclude that the record establishes that the Board considered the relevant factors in determining that petitioner's release would be incompatible with the welfare of society and would so deprecate the serious nature of his crimes as to undermine respect for the law (see Executive Law § 259–i[2][c][A] ), and petitioner has made no

“ ‘showing of irrationality bordering on impropriety’ “ with regard to the determination to warrant judicial intervention (Matter of Silmon v. Travis, 95 N.Y.2d 470, 476;  see Matter of Russo v New York State Bd. of Parole, 50 N.Y.2d 69, 77;  Matter of Singh v. Evans, 107 AD3d 1274, 1275).   Contrary to petitioner's contention, the Board adequately set forth its reasons for denying his application for release (see § 259–i[2][a][i];  Matter of Siao–Pao v. Dennison, 11 NY3d 777, 778, rearg. denied 11 NY3d 885).   We reject petitioner's further contention that the Board failed to comply with recent amendments to the Correction Law requiring the development of a transitional accountability plan for inmates (see § 71–a, L 2011, ch 62, § 1, part C, § 1, subpart A, § 16–a).  “The language of the statute clearly applies only to newly admitted prisoners and is prospective in nature” and, here, petitioner was admitted to prison more than 20 years before the statutory provision took effect (Matter of Rivera v New York State Div. of Parole, 119 AD3d 1107, 1108–1109;  see generally Matter of Freeman v Fisher, 118 AD3d 1438, 1439).

Contrary to petitioner's contention, we conclude that the 2011 memorandum issued by Chairwoman Andrea Evans to Board members “sufficiently establishes the requisite procedures for incorporat[ing] risk and needs principles into the process of making parole release decisions” (Matter of Byas v. Fischer, 120 AD3d 1586, 1586 [internal quotation marks omitted];  see Executive Law § 259–c [4] ).   In any event, we note that the Board has promulgated regulations for “parole release decision-making procedures,” which became effective July 30, 2014, that are consistent with the procedures set forth in the 2011 memorandum (see 9 NYCRR 8002.3).

We have reviewed petitioner's remaining contentions and conclude that they are without merit.

Frances E. Cafarell

Clerk of the Court