Matter of Tran v. Evans , 3 N.Y.S.3d 633 ( 2015 )


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  •                           State of New York
    Supreme Court, Appellate Division
    Third Judicial Department
    Decided and Entered: March 19, 2015                    519178
    ________________________________
    In the Matter of DANG TRAN,
    Appellant,
    v                                     MEMORANDUM AND ORDER
    ANDREA D. EVANS, as Chair of
    the Division of Parole,
    Respondent.
    ________________________________
    Calendar Date:   January 20, 2015
    Before:   McCarthy, J.P., Garry, Lynch and Devine, JJ.
    __________
    Dang Tran, Woodbourne, appellant pro se.
    Eric T. Schneiderman, Attorney General, Albany (Laura
    Etlinger of counsel), for respondent.
    __________
    Appeal from a judgment of the Supreme Court (LaBuda, J.),
    entered May 23, 2014 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 petitioner's request for parole release.
    In 1995, while on probation, petitioner shot three
    individuals, killing one of them. He was subsequently convicted
    of murder in the second degree and attempted murder in the second
    degree (two counts) and sentenced to an aggregate prison term of
    18 years to life. In July 2013, petitioner made his initial
    appearance before the Board of Parole seeking to be released to
    parole supervision. Following a hearing, his request was denied
    and he was ordered held an additional 24 months. Petitioner
    filed an administrative appeal and, when it was not decided
    within four months, then commenced this CPLR article 78
    -2-                519178
    proceeding. Following joinder of issue, Supreme Court dismissed
    the petition and this appeal ensued.
    We affirm. Where the Board has complied with the statutory
    requirements governing parole procedures, "[j]udicial
    intervention is warranted only when there is a showing of
    irrationality bordering on impropriety" (Matter of Mercado v
    Evans, 120 AD3d 1521, 1522 [2014] [internal quotation marks and
    citation omitted]; accord Matter of Hamilton v New York State
    Div. of Parole, 119 AD3d 1268, 1269 [2014]). Here, the record
    reveals that the Board considered the serious nature of
    petitioner's crimes, together with other relevant statutory
    factors, including his clean prison disciplinary record, his
    programming accomplishments, the available sentencing minutes,
    the existence of a deportation order, the COMPAS Risk and Needs
    Assessment instrument and his plans upon release (see Executive
    Law § 259-i [c] [2] [A] [i]-[viii]; Matter of Mercado v Evans,
    120 AD3d at 1522).
    We have previously considered and rejected petitioner's
    argument that the Board did not comply with the 2011 amendments
    to Executive Law § 259-c (4) (see Matter of Montane v Evans, 116
    AD3d 197, 202-203 [2014], appeal dismissed 24 NY3d 1052 [2014]).
    Similarly, as petitioner was admitted to state custody in 1997,
    his contention that the Board failed to comply with the statutory
    mandate requiring the development of a transitional
    accountability plan for inmates in prison, as is set forth in
    Correction Law § 71-a, is unpersuasive (see Matter of Rivera v
    New York State Div. of Parole, 119 AD3d 1107, 1109 [2014]; see
    also Matter of Delacruz v Annucci, 122 AD3d 1413, 1414 [2014]).
    Upon review, we find that the Board's determination
    complies with the statutory requirements, and does not evince
    "irrationality bordering on impropriety" (Matter of Hamilton v
    New York State Div. of Parole, 119 AD3d at 1269 [internal
    quotation marks and citations omitted]; accord Matter of Molinar
    v New York State Div. of Parole, 119 AD3d 1214, 1216 [2014]).
    Accordingly, it will not be disturbed. Petitioner's remaining
    arguments have been considered and found to be lacking in merit.
    -3-                  519178
    McCarthy, J.P., Garry, Lynch and Devine, JJ., concur.
    ORDERED that the judgment is affirmed, without costs.
    ENTER:
    Robert D. Mayberger
    Clerk of the Court
    

Document Info

Docket Number: 519178

Citation Numbers: 126 A.D.3d 1196, 3 N.Y.S.3d 633

Filed Date: 3/19/2015

Precedential Status: Precedential

Modified Date: 1/12/2023