IN RE: James DORMAN

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

IN RE: James DORMAN, Appellant, v. NEW YORK STATE BOARD OF PAROLE, Respondent.

Decided: June 22, 2006

Before:  MERCURE, J.P., SPAIN, CARPINELLO, LAHTINEN and KANE, JJ. James Dorman, Marcy, appellant pro se. Eliot Spitzer, Attorney General, Albany (Marlene O. Tuczinski of counsel), for respondent.

Appeal from a judgment of the Supreme Court (McNamara, J.), entered December 30, 2005 in Albany 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.

In July 1998, petitioner drove three male acquaintances to a park in the City of Buffalo, Erie County.   There, one of his friends shot a man in the back, leaving him paralyzed, and also stole a purse from the victim's female companion.   After he was apprehended, petitioner pleaded guilty to assault in the first degree and two counts of robbery in the first degree, and was sentenced to 7 to 14 years in prison.   In April 2005, petitioner made his first appearance before respondent for parole release.   His request was denied and he was held for an additional 24 months.   After the denial was affirmed on administrative appeal, petitioner commenced this CPLR article 78 proceeding.   Following service of respondent's answer, Supreme Court dismissed the petition and this appeal ensued.

We affirm.   Upon reviewing the record, we do not find that respondent's decision denying petitioner's request for parole release evinces “ ‘irrationality bordering on impropriety’ ” (Matter of Silmon v. Travis, 95 N.Y.2d 470, 476, 718 N.Y.S.2d 704, 741 N.E.2d 501 [2000], quoting 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 [1980] ).   Respondent considered the appropriate statutory factors set forth in Executive Law § 259-i, including not only the violent nature of petitioner's crimes, but also his program achievements, clean prison disciplinary record, receipt of a certificate of earned eligibility and postrelease plans (see Matter of Scott v. New York State Div. of Parole, 23 A.D.3d 950, 951, 805 N.Y.S.2d 440 [2005] ).   Contrary to petitioner's claim, his receipt of a certificate of earned eligibility did not automatically entitle him to discretionary parole release (see Matter of Pearl v. New York State Div. of Parole, 25 A.D.3d 1058, 808 N.Y.S.2d 816 [2006];  Matter of Morrero v. Dennison, 19 A.D.3d 960, 961, 797 N.Y.S.2d 638 [2005] ).   Petitioner's remaining contentions have been considered and found to be without merit.

ORDERED that the judgment is affirmed, without costs.

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