Calendar Date: April 3, 2018Before: Garry, P.J., Egan Jr., Lynch, Mulvey and Pritzker, JJ.__________Michael Allen, Attica, appellant pro se.Barbara D. Underwood, Attorney General, Albany (FrederickA. Brodie of counsel), for respondent.__________Pritzker, J.Appeal from a judgment of the Supreme Court (Melkonian,J.), entered October 24, 2017 in Albany County, which dismissedpetitioner’s application, in a proceeding pursuant to CPLRarticle 78, to review a determination of the Board of Paroledenying petitioner’s request for parole release.Based upon serious criminal conduct in the months beforehis eighteenth birthday, petitioner was convicted of murder inthe second degree, criminal possession of a weapon in the seconddegree, escape in the first degree, attempted murder in thesecond degree and rape in the first degree. Petitioner wassentenced to an aggregate term of 27a years to life in prison.In November 2016, when he was 44 years old, petitioner made hisfirst appearance before the Board of Parole seeking parolerelease. Following a hearing, the Board denied his request andordered him held for an additional 24 months. The denial waslater upheld on administrative appeal, which was challenged inthis CPLR article 78 proceeding. Following joinder of issue,Supreme Court dismissed the petition, and this appeal ensued.We affirm. Executive Law article 12-B sets forth theprocedures governing parole. Pursuant to Executive Law § 259-i(5), the scope of our review in these matters is narrow, as anyaction taken by the Board pursuant to this article is “deemed ajudicial function and shall not be reviewable if done inaccordance with law.” Thus, “[j]udicial intervention iswarranted only when there is a showing of irrationality borderingon impropriety” (Matter of Silmon v Travis, 95 NY2d 470, 476[2000] [internal quotation marks and citation omitted]).Executive Law § 259-i (2) (c) sets forth the factors thatthe Board must consider when making discretionary parole releasedeterminations, including the inmate’s institutional record, theseriousness of the offense, the recommendations of the sentencingcourt and the District Attorney, the presentence probation reportand mitigating or aggravating factors to the crime, among others.The Board is not required to give equal weight to each statutoryfactor (see Matter of Wan Zhang v Travis, 10 AD3d 828, 829[2004]; Matter of Geames v Travis, 284 AD2d 843, 843 [2001],appeal dismissed 97 NY2d 639 [2001]). However, particularlyrelevant here, “[f]or those persons convicted of crimes committedas juveniles who, but for a favorable parole determination willbe punished by life in prison, the Board must consider youth andits attendant characteristics in relationship to the commissionof the crime[s] at issue” (Matter of Hawkins v New York StateDept. of Corr. & Community Supervision, 140 AD3d 34, 39 [2016]).Contrary to petitioner’s contentions, review of the recordleads us to the conclusion that the Board did consider thenecessary statutory factors, as well as petitioner’s youth at thetime of the crimes. Specifically, at the hearing, the Boardexplored the facts underlying petitioner’s crimes in detail andhis insight into his crimes, as well as his release plans, priorcriminal record, educational and institutional achievements,lengthy prison disciplinary record, sentencing minutes, COMPASRisk and Needs Assessment instrument and numerous letters ofsupport. Also, the hearing transcript demonstrates thatpetitioner’s youth at the time that he committed the crimes wasadequately explored. At the outset of the hearing, the Boardasked petitioner his age when he committed the crimes, to whichhe responded that he was 17 years old. Petitioner then citedpeer pressure and his desire for acceptance as driving forcesbehind his crimes. Exploring this further, the Board askedpetitioner: “Now that you’ve grown a number of years . . . what’syour assessment of yourself at that time, impulsive?” Petitionerstated that he considered himself to be impulsive and “weakminded”when he committed his crimes. The Board acknowledgedthat teenagers could be impulsive and further inquired as to whatcontributed to petitioner’s behavior, leading petitioner to givemore insight into his circumstances at the time of his crimes.The Board also asked petitioner to compare his thought process atthe time of his crimes to his current thought process. Althoughthe Board’s written decision denying parole release contains onlyone specific reference to petitioner’s age at the time of thecrimes, the decision also references that the Board consideredpetitioner’s parole packet, which includes a personal statementwherein he recognizes that, at the time of the crimes, he wasimmature, made poor choices and that his mind was not fullyenough developed to truly understand the consequences of hisbehavior. The Board also explicitly stated in its decision thatit considered the letters of support, many of which referencepetitioner’s age and immaturity at the time of his crimes.Although the Board explored petitioner’s youth at the timeof the crimes, ultimately it placed greater emphasis on otherfactors, including the seriousness of petitioner’s crimes and hishistory of unlawful and violent conduct, as it was entitled to do(see Matter of Hamilton v New York State Div. of Parole, 119 AD3d1268, 1274 [2014]). As the Board placed such emphasis on thesefactors, we would be remiss in not thoroughly addressing them indetermining whether the Board’s decision rises to the level of“irrationality bordering on impropriety” (Matter of Silmon vTravis, 95 NY2d at 476 [internal quotation marks and citationomitted]).In 1989, approximately 15 weeks shy of his eighteenthbirthday, petitioner and an accomplice approached a car that wasstopped at a red light. Petitioner displayed a hand gun andattempted to rob the driver, who sped off. Petitioner followedand, when the vehicle was slowed in traffic, he and hisaccomplice opened fire and struck the driver causing him to crashinto a pole. Ultimately, the driver was hospitalized for threemonths due to gunshot wounds to his face, chest and abdomen.Approximately four weeks later, petitioner was riding withfriends in a car when he stated that he wanted to try out his new9 millimeter semiautomatic pistol. Petitioner had his friendsstop the car, at which time he approached a random stranger, whowas 17 years old, shot him five times, including twice in thehead, and ran away, leaving the victim to die in the street. Oneday later, petitioner was a passenger in a cab when he saw an 18-year-old woman walking home and told the driver to stop.Petitioner got out of the cab and displayed three handguns thathe had in a shoulder holster, ordering the woman to get into thecab. Petitioner then directed the cab driver to take them to aresidential address, where he forced the victim out of the car,brought her inside, made her undress and raped her. According tothe victim, petitioner had done the same thing a month earlier.Approximately 10 days later, petitioner was taken into custody.Petitioner subsequently escaped, but was later apprehended.In denying parole release, the Board also citedpetitioner’s failure to complete all of his recommendedprogramming,1 as well as his poor compliance with Department ofCorrections and Community Supervision rules. The record revealsthat petitioner has 36 tier II and III prison disciplinaryviolations, the most recent of which occurred approximately oneyear prior to his appearance before the Board. A review of theseviolations reveals multiple instances of violence and at leasttwo instances involving a weapon. In an attempt to diminish theseriousness of these disciplinary violations, petitioner likenshis case to Matter of Hawthorne v Stanford (135 AD3d 1036[2016]), where we reversed the Board’s determination that reliedupon prison disciplinary violations in denying that petitionerparole release. There, the petitioner, who was diagnosed with aserious psychiatric disorder, was taken off his medication byprison doctors, leading to a psychotic breakdown rendering himunable to comply with prison regulations at the time that hisdisciplinary infractions occurred (id. at 1041). Here, insupport of his contention, petitioner has submitted Office ofMental Health records showing that he self-referred for mentalhealth screenings beginning in 2013. These screenings failed toyield any evidence of psychotic symptoms, nor did they result inpetitioner receiving active mental health services, negating theetiology underpinning the disciplinary violations in Hawthorne.In support of his claim that the Board did not adequatelyconsider his youth, petitioner relies on Matter of Hawkins v NewYork State Dept. of Corr. & Community Supervision (140 AD3d 34[2016], supra), in which we held that the Board failed to meetits constitutional obligation under the Eighth Amendment when itdenied the petitioner parole release without considering youthand its attendant characteristics in relationship to the crimesat issue. We find this matter distinguishable from thatauthority, both legally and factually. Hawkins is grounded uponthe holdings in a series of cases from the Supreme Court of theUnited States that interpreted the application of the EighthAmendment to cases of juvenile offenders and formed thesubstantive rule “that life without parole is an excessivesentence for children whose crimes reflect transient immaturity”(Montgomery v Louisiana, 577 US ___, ___, 136 S Ct 718, 735[2016]; see Miller v Alabama, 567 US 460 [2012]; Graham vFlorida, 560 US 48 [2010]).The petitioner in Hawkins, who committed murder at the ageof 16, had been denied parole nine times and was 54 years old.As such, our Court was faced with multiple parole denials,potentially resulting in life without parole, and a recordreflecting “irrationality bordering on impropriety” (Matter ofHawkins v New York State Dept. of Corr. & Community Supervision,140 AD3d at 40 [internal quotation marks and citations omitted][Garry, J., concurring]), ostensibly creating a de factoviolation of the Eighth Amendment. Here, there can be nolegitimate de facto argument advanced, as petitioner has onlyonce appeared before the Board and, as noted, the Board properlyconsidered the necessary statutory factors, as well aspetitioner’s youth.Aside from this important legal distinction, Hawkins isalso factually distinguishable relative to the factors examinedby the Board that led to the denial of parole. In stark contrastto petitioner here, the petitioner in Hawkins “consistentlydemonstrated exemplary conduct within the prison setting[,] . . .[having] a minimal disciplinary history, having not been chargedwith any offense of any nature [in 16 years] . . . [and having]never been charged with an infraction involving either violenceor drug use in the entire course of his incarceration” (id. at 41[Garry, J., concurring]). Further, the petitioner in Hawkinsalso had “an excellent history of program participation” (id.[Garry, J., concurring]). Finally, as noted herein, the type ofcrimes committed by petitioner here are diametrically distinctfrom the one crime of passion that was before us in Hawkins.Among other crimes, petitioner committed a rape the day after heshot and killed a 17-year-old random stranger so that he couldtry out his new semiautomatic pistol. Although the underlyingfacts in Hawkins led to the determination that the petitioner hadnot received a “meaningful opportunity for release” (id. at 40),we find that the factual landscape in petitioner’s case isdistinctly different.A thorough review of the Board’s decision evinces that allnecessary statutory factors, as well as petitioner’s youth andits attendant characteristics, were considered. Although theBoard assigned greater weight to the seriousness of petitioner’scrimes, his history of violence, his failure to completerecommended programming and his lengthy prison disciplinaryrecord, we find that the ultimate determination is rational and,therefore, we will not disturb it (see Matter of Hamilton v NewYork State Div. of Parole, 119 AD3d at 1274).Garry, P.J., Egan Jr., Lynch and Mulvey, JJ., concur.ORDERED that the judgment is affirmed, without costs.ENTER:Robert D. MaybergerClerk of the Court
