Matter of Moore v. New York State Board of Parole

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: March 3, 2016 521583
________________________________
In the Matter of ANTOINE
MOORE,
Appellant,
v MEMORANDUM AND ORDER
NEW YORK STATE BOARD OF PAROLE,
Respondent.
________________________________
Calendar Date: January 19, 2016
Before: McCarthy, J.P., Rose, Lynch and Clark, JJ.
__________
Antoine Moore, Beacon, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany (Frederick
A. Brodie of counsel), for respondent.
__________
Appeal from a judgment of the Supreme Court (Zwack, J.),
entered May 27, 2015 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 of murder in the second degree and
sentenced to 15 years to life in prison. H was released to
parole supervision and, while on parole, he was involved in an
incident in which he choked his young female cousin until she
lost consciousness. As a result, his parole was revoked and he
was convicted of, among other things, attempted assault in the
second degree and sentenced to 1½ to 3 years in prison. In
November 2013, petitioner made his third appearance before
respondent seeking again to be released to parole supervision.
Following a hearing, respondent denied petitioner's request and
-2- 521583
ordered him held for an additional 24 months. Petitioner took an
administrative appeal and, when it was not decided within four
months, he commenced this CPLR article 78 proceeding. Following
joinder of issue, Supreme Court dismissed the petition and this
appeal ensued.1
Initially, we find no merit to petitioner's claim that
respondent failed to promulgate written procedures for use in
making parole decisions in accordance with the 2011 amendments to
Executive Law § 259-c (4). This very argument was considered and
rejected by this Court in Matter of Montane v Evans (116 AD3d 197
[2014], appeal dismissed 24 NY3d 1052 [2014]), which is
controlling here (see Matter of Hill v New York State Bd. of
Parole, 130 AD3d 1130, 1131 [2015]).2 Contrary to petitioner's
assertion, the record reveals that respondent considered the
relevant factors set forth in Executive Law § 259-i in evaluating
his request for parole release, including not only the
seriousness of petitioner's crimes, but also his criminal
history, prison disciplinary record, program accomplishments and
postrelease plans, as well as the sentencing minutes and the
COMPAS Risk and Needs Assessment instrument (see Matter of Hill v
New York State Bd. of Parole, 130 AD3d at 1130; Matter of Diaz v
New York State Dept. of Corrections & Community Supervision, 127
AD3d 1493, 1494 [2015]). Significantly, respondent was not
required to give each factor equal weight and could place greater
emphasis on the gravity of petitioner's crimes (see Matter of
Feilzer v New York State Div. of Parole, 131 AD3d 1321, 1322
[2015]; Matter of Martinez v Evans, 108 AD3d 815, 816 [2013]).
We have considered petitioner's remaining arguments and find them
to be unavailing. Given that respondent's decision does not
exhibit "irrationality bordering on impropriety" (Matter of
1
Petitioner requested postponement of his November 2015
reappearance before respondent pending the resolution of this
appeal.
2
In any event, we note that respondent has since adopted
formal regulations governing parole release decisions (see 9
NYCRR 8002.3) that are applicable to petitioner's next
appearance.
-3- 521583
Silmon v Travis, 95 NY2d 470, 476 [2000] [internal quotation
marks and citation omitted]), we find no reason to disturb it.
McCarthy, J.P., Rose, Lynch and Clark, JJ., concur.
ORDERED that the judgment is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court