IN RE: John D. HOPKINS

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

IN RE: John D. HOPKINS, Appellant, v. NEW YORK STATE BOARD OF PAROLE, Respondent.

Decided: May 22, 2008

Before:  CARDONA, P.J., MERCURE, PETERS, LAHTINEN and KANE, JJ. John D. Hopkins, Wallkill, appellant pro se. Andrew M. Cuomo, Attorney General, Albany (Frank K. Walsh of counsel), for respondent.

Appeal from a judgment of the Supreme Court (McNamara, J.), entered September 18, 2007 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 2003, petitioner was sentenced as a second felony offender to a prison term of 1 1/212 to 3 years for his conviction upon his plea of guilty of grand larceny in the fourth degree.   At the time of his incarceration, petitioner owed eight years, one month and two days on prior undischarged sentences.   After petitioner made a reappearance before respondent in August 2006, his request for parole release was denied.   Petitioner commenced this CPLR article 78 proceeding when his administrative appeal was not timely decided.   Supreme Court dismissed the petition, prompting this appeal.

Petitioner primarily contends that respondent's determination must be annulled because it considered erroneous information;  namely, that he is currently serving a sentence of 1 1/212 to 3 years upon his grand larceny conviction.   According to petitioner, that sentence expired in March 2006.   However, that sentence was imposed pursuant to Penal Law § 70.06 and, by operation of law, it runs consecutively to his previous undischarged sentences (see Penal Law § 70.25[2-a];  Matter of Jackson v. Smith, 36 A.D.3d 1067, 1068, 827 N.Y.S.2d 341 [2007] ).   As such, respondent did not err in stating that petitioner was still subject to that sentence (see e.g. Matter of Cook v. Goord, 275 A.D.2d 819, 820, 713 N.Y.S.2d 507 [2000], lv. denied 95 N.Y.2d 769, 722 N.Y.S.2d 472, 745 N.E.2d 392 [2000] ).   Furthermore, the record demonstrates that respondent properly considered the appropriate statutory factors (see Executive Law § 259-i), including petitioner's lengthy multistate criminal history, his disciplinary history, as well as his institutional achievements, earned eligibility certificate and plans for postrelease integration into the community, before concluding that there was a reasonable probability that petitioner could not live at liberty without violating the law.   As petitioner has not demonstrated that respondent's decision was affected by “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] [internal quotation marks and citation omitted];  see Matter of Serrano v. Dennison, 46 A.D.3d 1002, 846 N.Y.S.2d 808 [2007] ), we decline to disturb it.

ORDERED that the judgment is affirmed, without costs.

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