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Matter of Gainey v Alexander 2007 NY Slip Op 31120(U) May 3, 2007 Supreme Court, Wyoming County Docket Number: 20438-07/2007 Judge: Mark H. Dadd Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

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At a term of Supreme Court held in and for the County of Wyoming, at Attica, New York, on the 3rd day of May, 2007.

PRESENT:

HONORABLE MARK H. DADD Acting Supreme Court Justice

STATE OF NEW YORK SUPREME COURT : COUNTY OF WYOMING In the Matter of the Application of NORMOND GAINEY, #95-A-4673', Petitioner V . GEORGE ALEXANDER, Acting Chairman, New York State Division of Parole, Respondent For the Petitioner WYOMING COUNTY-ATTICA LEGAL AID BUREAU, INC. Norman P. Effman, Director 14 Main Street Attica, New York 14011 For the Respondent ANDREW M. CUOMO, Attorney General by Paul Volcy Assistant Attorney General Statler Towers, Fourth Floor 107 Delaware Avenue Buffalo, New York 14202
MEMORANDUM AND JUDGMENT

Index No. 20,438-07

By petition pursuant to Article 78 of the CPLR verified on March 9, 2007, Normond Gainey seeks review of a parole release hearing conducted on May 9, 2006. Petitioner appeared by counsel assigned by an order to show cause dated March 13, 2007 and contended that he should be granted a de novo hearing. Respondent requests that the petition be denied upon the answer dated April 25, 2007 and the record of confidential information submitted to the Court. The petition is without merit. The Board of Parole could cite the serious and violent conduct underlying the petitioner's murder conviction and his disciplinary record as

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Memorandum and Judgment

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Index No. 20,438-07

sufficient grounds for denying release (see Matter of Fuchino v. Herbert, 255 A.D.2d 914 [1998]; Matter of Scott v. Russi, 208 A.D.2d 931 [1994]; Matter of Putland v. Herbert, 231 A.D.2d 893 [1996], motion for leave to appeal denied 89 N.Y.2d 806; People ex re1 Justice v. Russi, 226 A.D.2d 821 [1996]; Matter of Jackson v. New York State Division of Parole, 217 A.D.2d 732 [1995]; Matter of Fortune v. Russi, Supreme Court of Wyoming County, Index No. 17,207, Memorandum and Judgment dated July 22,1994, annexed, affirmed 219 A.D.2d 869 [1995]). The commissioners had discretion to place greater weight on these factors than they placed on his program performance and proposed release plans (see Matter of Ristau v. Hammock, 103 A.D.2d 944 [1984], motion for leave to appeal denied 63 N.Y.2d 608; Matter of Rentz v. Herbert, 206 A.D.2d 944 [1994], motion for leave to appeal denied 84 N.Y.2d 810). Furthermore, their decision did not have to specifically mention every factor weighed in reaching a determination (see Matter of Mackall v. New York State Board of Parole, 91 A.D.2d 1023 [1983], motion for leave to appeal denied 58 N.Y.2d 609; Matter of Davis v. New York State Division of Parole, 114 A.D.2d 412 [1985]). Petitioner has not demonstrated that the commissioners failed to give fair consideration to all of the relevant statutory factors pursuant to Executive Law

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