Pender v. Travis

Appeal from a judgment of the Supreme Court (Bradley, J.), entered November 25, 1996 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.

Petitioner was convicted upon his plea of guilty of the crimes of murder in the second degree and assault in the first degree and was sentenced to a prison term of seven years to life. Petitioner’s challenge to respondent’s November 1994 determination denying him parole has been rendered moot by respondent’s November 1996 determination which, following a hearing, again denied petitioner’s application for parole (see, Matter of Gordon v Russi, 211 AD2d 924). Were we to consider the merits of petitioner’s claim that respondent rendered a determination without having first considered a psychiatric evaluation of him, we would find that the record belies this contention. The record establishes that respondent considered petitioner’s entire file, including the psychiatric evaluations contained therein, but denied parole based upon the seriousness of the crimes and petitioner’s continuing propensity for violence as demonstrated by his prison behavior. Because respondent’s discretionary decision to deny petitioner’s application for parole is supported by the record and made in accordance with the law, we would find no basis to disturb it (see, Executive Law § 259-i [5]; Matter of Augle v New York State Bd. of Parole, 192 AD2d 1031).

Mikoll, J. P., Casey, Yesawich Jr., Spain and Carpinello, JJ., concur. Ordered that the appeal is dismissed, as moot, without costs.