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

IN RE: John MacKENZIE, Appellant, v. Andrea EVANS, as Chair of the New York State Division of Parole, Respondent.

Decided: May 31, 2012

Before:  ROSE, J.P., MALONE JR., STEIN, GARRY and EGAN JR., JJ. John MacKenzie, Woodbourne, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Allyson B. Levine of counsel), for respondent.

Appeal from a judgment of the Supreme Court (LaBuda, J.), entered September 11, 2011 in Sullivan County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of the Board of Parole denying his request for parole release.

In 1982, petitioner was convicted of a number of crimes, including murder in the second degree, after he shot and killed a police officer during the course of a burglary (People v. MacKenzie, 193 A.D.2d 700, 598 N.Y.S.2d 44 [1993], lv. denied 82 N.Y.2d 722, 602 N.Y.S.2d 819, 622 N.E.2d 320 [1993] ).   He was sentenced to an aggregate prison term of 25 years to life.   In June 2010, he made his sixth appearance before the Board of Parole seeking to be released to parole supervision.   Following a hearing, the Board again denied his request and ordered him held an additional 24 months.   The decision was affirmed on administrative appeal and petitioner commenced this CPLR article 78 proceeding challenging it.   Following service of respondent's answer, Supreme Court dismissed the petition and this appeal ensued.

 We affirm.   It is well settled the parole release decisions are discretionary and will not be disturbed as long as the Board complied with the statutory requirements of Executive Law § 259–i (see Matter of Valentino v. Evans, 92 A.D.3d 1054, 937 N.Y.S.2d 737 [2012];  Matter of Sanchez v. Division of Parole, 89 A.D.3d 1305, 1306, 933 N.Y.S.2d 139 [2011] ).   In accordance with those requirements,1 the Board considered not only the serious nature of petitioner's crimes, but also his criminal history, positive program accomplishments, clean prison disciplinary record for over 30 years and postrelease plans (see Matter of MacKenzie v. Dennison, 55 A.D.3d 1092, 1092, 866 N.Y.S.2d 384 [2008];  Matter of Burress v. Dennison, 37 A.D.3d 930, 931, 829 N.Y.S.2d 283 [2007] ).   Although the Board placed greater emphasis on the severity of the crimes than on the other statutory factors in concluding that petitioner's release was “ incompatible with the welfare and safety of the community, and will so deprecate the seriousness of th[e] crime[s] as to undermine respect for the law,” it was entitled to do so as the Board was not required to give equal weight to each of the statutory factors (see Matter of Sanchez v. Division of Parole, 89 A.D.3d at 1306, 933 N.Y.S.2d 139;  Matter of Matos v. New York State Bd. of Parole, 87 A.D.3d 1193, 1194, 929 N.Y.S.2d 343 [2011] ).   Contrary to petitioner's assertions, the publicity generated by certain members of the Legislature purporting to take credit for the denial of parole to petitioner does not substantiate his contention that the Board's decision was the result of political pressure (see generally Matter of Allah v. Pataki, 15 A.D.3d 810, 811, 789 N.Y.S.2d 764 [2005], appeal dismissed 5 N.Y.3d 780, 801 N.Y.S.2d 558, 835 N.E.2d 326 [2005];  Matter of McGovern v. Travis, 268 A.D.2d 924, 925, 700 N.Y.S.2d 872 [2000] ).   Likewise, his challenge to the constitutionality of the statute is unavailing (see Matter of Felder v. Travis, 278 A.D.2d 570, 571, 717 N.Y.S.2d 683 [2000];  Matter of Jerrell v. Ibsen, 253 A.D.2d 917, 677 N.Y.S.2d 817 [1998] ).   In sum, given that the Board's decision does not evince “ ‘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] ), we decline to disturb it.

ORDERED that the judgment is affirmed, without costs.


1.   We note that Executive Law § 259–i and related parole statutes were amended after the Board's decision in this case (see L. 2011, ch. 62, § 1, part C, subpart A, §§ 38–b, 38–f–1).



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