Matter of Holmes v. Annucci

Matter of Holmes v Annucci (2017 NY Slip Op 05372)

Matter of Holmes v Annucci

2017 NY Slip Op 05372

Decided on June 30, 2017

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 30, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., CARNI, LINDLEY, CURRAN, AND SCUDDER, JJ.

906 CA 16-00935

[*1]IN THE MATTER OF WILLIAM HOLMES, PETITIONER-APPELLANT,

v

ANTHONY ANNUCCI, ACTING COMMISSIONER, NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, RESPONDENT-RESPONDENT.

WYOMING COUNTY-ATTICA LEGAL AID BUREAU, WARSAW (ADAM W. KOCH OF COUNSEL), FOR PETITIONER-APPELLANT.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (KATE H. NEPVEU OF COUNSEL), FOR RESPONDENT-RESPONDENT.

Appeal from a judgment of the Supreme Court, Wyoming County (Michael M. Mohun, A.J.), entered May 6, 2016 in a proceeding pursuant to CPLR article 78. The judgment dismissed the petition.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.

Memorandum: Petitioner appeals from a judgment dismissing his petition pursuant to CPLR article 78 seeking to annul the determination of the Parole Board (Board) denying him parole release. "It is well settled that parole release decisions are discretionary and will not be disturbed so long as the Board complied with the statutory requirements enumerated in Executive Law § 259-i" (Matter of Gssime v New York State Div. of Parole, 84 AD3d 1630, 1631, lv dismissed 17 NY3d 847; see Matter of Johnson v New York State Div. of Parole, 65 AD3d 838, 839). Contrary to petitioner's contention, we conclude that the Board did not rely on incorrect information in making its determination, specifically that petitioner had not completed the alcohol and substance abuse program (ASAT). Petitioner admitted that ASAT had been recommended to him, and his statement that his counselor did not think he needed ASAT because he had already taken it previously does not make that information erroneous. We reject petitioner's further contentions that the Board looked exclusively to past-focused factors and failed to consider all of the factors in a fair manner. The record establishes that the Board appropriately considered the relevant factors in denying petitioner's application for release, including, inter alia, the underlying offense, petitioner's criminal history and prior violations of parole, his institutional adjustment, and his plans upon release (see Matter of Kenefick v Sticht, 139 AD3d 1380, 1381, lv denied 28 NY3d 902).

Entered: June 30, 2017

Frances E. Cafarell

Clerk of the Court