Matter of Ward v. New York State Division of Parole , 40 N.Y.S.3d 803 ( 2016 )


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  •                           State of New York
    Supreme Court, Appellate Division
    Third Judicial Department
    Decided and Entered: November 17, 2016                   522863
    ________________________________
    In the Matter of GEORGE WARD,
    Appellant,
    v                                     MEMORANDUM AND ORDER
    NEW YORK STATE DIVISION OF
    PAROLE,
    Respondent.
    ________________________________
    Calendar Date:   October 25, 2016
    Before:   Garry, J.P., Egan Jr., Rose, Devine and Mulvey, JJ.
    __________
    George Ward, Sonyea, appellant pro se.
    Eric T. Schneiderman, Attorney General, Albany (Brian D.
    Ginsburg of counsel), for respondent.
    __________
    Appeal from a judgment of the Supreme Court (Zwack, J.),
    entered February 23, 2016 in Albany 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 1963, petitioner was convicted of murder in the second
    degree after he fatally strangled a 76-year-old woman, then stole
    money from her apartment and engaged in sex with her corpse. He
    was sentenced to a lengthy term of incarceration having a maximum
    of life in prison. Petitioner was initially released to parole
    supervision in 1975; this attempt failed. His parole was
    subsequently revoked, but was restored thereafter, and petitioner
    was given additional opportunities to live a law-abiding life.
    Ultimately, in 1990, he was charged with multiple crimes arising
    from his forced oral sodomization of two young girls. Petitioner
    -2-                522863
    thereafter pleaded guilty to two counts of sodomy in the first
    degree and was sentenced in 1993 to two concurrent prison terms
    of 6 to 18 years, to run concurrently with the remainder of the
    sentence that he was serving on his murder conviction.
    Petitioner has subsequently appeared before the Board of Parole a
    number of times, the last being his twelfth appearance in
    November 2014. At the conclusion of the parole interview, the
    Board denied his request for parole release and ordered him held
    an additional 24 months. This decision was later affirmed on
    administrative appeal. Petitioner then commenced this CPLR
    article 78 proceeding challenging the denial and, following
    joinder of issue, Supreme Court dismissed the petition.
    Petitioner now appeals.
    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 (see Matter of Wiley v State of N.Y. Dept.
    of Corr. & Community Supervision, 139 AD3d 1289, 1289 [2016];
    Matter of King v Stanford, 137 AD3d 1396, 1397 [2016]). Here,
    the record reveals that the Board took into consideration the
    relevant statutory factors, including the serious nature of
    petitioner's sodomy convictions, his commission of these crimes
    while on parole, his violent criminal history, his minimal prison
    disciplinary record, his positive program accomplishments, his
    postrelease plans, the sentencing minutes and the COMPAS Risk and
    Needs Assessment instrument (see Matter of Wiley v State of N.Y.
    Dept. of Corr. & Community Supervision, 139 AD3d at 1289; Matter
    of King v Stanford, 137 AD3d at 1397). Petitioner's claim that
    the Board neglected to take into account the sentencing minutes
    is belied by the record, which indicates that the minutes were
    considered, but do not contain a sentencing recommendation (see
    Matter of King v Stanford, 137 AD3d at 1397; Matter of Shark v
    New York State Div. of Parole Chair, 110 AD3d 1134, 1134-1135
    [2013], lv dismissed 23 NY3d 933 [2014]). Petitioner's remaining
    assertions are unavailing. We find, upon review, that the
    Board's decision does not exhibit "'irrationality bordering on
    impropriety'" (Matter of Silmon v Travis, 95 NY2d 470, 476
    [2000], quoting Matter of Russo v New York State Bd. of Parole,
    50 NY2d 69, 77 [1980]), and we decline to disturb it.
    -3-                  522863
    Garry, J.P., Egan Jr., Rose, Devine and Mulvey, JJ.,
    concur.
    ORDERED that the judgment is affirmed, without costs.
    ENTER:
    Robert D. Mayberger
    Clerk of the Court
    

Document Info

Docket Number: 522863

Citation Numbers: 144 A.D.3d 1375, 40 N.Y.S.3d 803

Filed Date: 11/17/2016

Precedential Status: Precedential

Modified Date: 1/12/2023