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

IN RE: Cesar ESPINAL, Appellant, v. NEW YORK STATE BOARD OF PAROLE et al., Respondents.


Decided: May 23, 2019

Before:  Egan Jr., J.P., Mulvey, Devine, Aarons and Rumsey, JJ. Robert Caliendo, New York City, for appellant. Letitia James, Attorney General, Albany (Laura Etlinger of counsel), for respondents.


Petitioner is serving concurrent prison terms – the longest of which is 15 years to life – upon his convictions of murder in the second degree, attempted assault in the second degree and robbery in the first degree (two counts).  In June 2017, petitioner reappeared before respondent Board of Parole and, following a hearing, his request for parole release was denied, and he was ordered held for an additional 24 months.  Petitioner's administrative appeal was unsuccessful, and he thereafter commenced this CPLR article 78 proceeding to challenge the Board's determination.  Supreme Court dismissed the proceeding, prompting this appeal.

We affirm.  “It is well settled that parole release decisions are discretionary and will not be disturbed as long as the Board complied with the statutory requirements set forth in Executive Law § 259–i” (Matter of Cobb v. Stanford, 153 A.D.3d 1500, 1501, 59 N.Y.S.3d 915 [2017] [citations omitted];  accord Matter of Rodriguez v. New York State Bd. of Parole, 168 A.D.3d 1342, 1343, 92 N.Y.S.3d 482 [2019];  see Matter of Boccadisi v. Stanford, 133 A.D.3d 1169, 1170, 20 N.Y.S.3d 477 [2015] ).  The record here, including the hearing transcript and the Board's decision, reflects that the Board considered the relevant statutory factors in denying petitioner's request for parole release, including petitioner's criminal history, the seriousness of the instant offenses, petitioner's conduct while confined, his substance abuse history, his impending completion of a substance abuse program, his release plans and the fact that he was under a deportation order (see e.g. Matter of Robinson v. New York State Bd. of Parole, 162 A.D.3d 1450, 1451, 81 N.Y.S.3d 235 [2018];  Matter of Constant v. Stanford, 157 A.D.3d 1175, 1176, 67 N.Y.S.3d 508 [2018];  Matter of Peralta v. New York State Bd. of Parole, 157 A.D.3d 1151, 1151, 69 N.Y.S.3d 885 [2018] ).  Additionally, the Board reviewed the relevant sentencing minutes and petitioner's COMPAS Risk and Needs Assessment scores, the latter of which yielded “mixed” results (Matter of Bush v. Annucci, 148 A.D.3d 1392, 1393, 50 N.Y.S.3d 180 [2017] ).  The Board was not required to give equal weight to – or expressly discuss – each of the statutory factors (see Matter of Lewis v. Stanford, 153 A.D.3d 1478, 1478–1479, 59 N.Y.S.3d 726 [2017];  Matter of Crawford v. New York State Bd. of Parole, 144 A.D.3d 1308, 1309, 46 N.Y.S.3d 228 [2016], lv denied 29 N.Y.3d 901, 57 N.Y.S.3d 704, 80 N.E.3d 397 [2017];  Matter of Mullins v. New York State Bd. of Parole, 136 A.D.3d 1141, 1142, 25 N.Y.S.3d 698 [2016] ), and, although petitioner was under a deportation order, “this was simply another factor for [the Board] to consider and did not guarantee petitioner's release” (Matter of Rodriguez v. New York State Bd. of Parole, 168 A.D.3d at 1343, 92 N.Y.S.3d 482;  see Matter of Peralta v. New York State Bd. of Parole, 157 A.D.3d at 1151, 69 N.Y.S.3d 885;  Matter of Perea v. Stanford, 149 A.D.3d 1392, 1393, 53 N.Y.S.3d 231 [2017] ).  Finally, and contrary to petitioner's assertion, the record before us makes clear that the Board did not deny petitioner's request for release solely upon his history of disciplinary infractions (cf. Matter of Gonzalez v. Chair, N.Y. State Bd. of Parole, 72 A.D.3d 1368, 1369, 898 N.Y.S.2d 737 [2010];  Matter of Alamo v. New York State Div. of Parole, 52 A.D.3d 1163, 1163, 860 N.Y.S.2d 326 [2008] ).  In short, as 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] [internal quotation marks and citation omitted] ), we will not disturb it (see Matter of Applegate v. New York State Bd. of Parole, 164 A.D.3d 996, 998, 82 N.Y.S.3d 240 [2018] ).  Petitioner's remaining arguments have been examined and found to be lacking in merit.

ORDERED that the judgment is affirmed, without costs.

Aarons, J.

Egan Jr., J.P., Mulvey, Devine and Rumsey, JJ., concur.

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