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Matter of Marziale v Dennison 2007 NY Slip Op 30525(U) March 30, 2007 Supreme Court, Albany County Docket Number: 0692106/2007 Judge: George B. Ceresia 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.

STATE OF NEW YORK SUPREME COURT

COUNTY OF ALBANY

In The Matter of VICTOR F. MARZIALE, Jr., Petitioner, -againstROBERT DENNISON, Chairman, NYS Board of Parole, Respondent, For A Judgment Pursuant to Article 78 of the Civil Practice Law and Rules.

Supreme Court Albany County Article 78 Term Hon. George B. Ceresia, Jr., Supreme Court Justice Presiding RJI # 0 1-06-ST7 162 Index No. 692 1-06 Appearances : Victor F. Marziale Jr. Inmate No. 9 1-B- 1873 Petitioner, Pro Se Marcy Correctional Facility P.O. Box 500 Marcy, NY 13403 Andrew M. Cuomo Attorney General State of Nrw York Attorney For Respondent The Capitol Albany, New York 12224 (Jaime I. Roth, Assistant Attorney General of Counsel) DECISION/ORDER/JUDGMENT

George B. Ceresia, Jr., Justice

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The petitioner, an inmate at Marcy Correctional Facility, has commenced the instant CPLR Article 78 proceeding to review a determination of respondent made on October 25,
2005 to deny petitioner discretionary release on parole. The petitioner is serving a term of

fifteen years to life after having pleaded guilty to the crime of murder 2"ddegree. Among the many arguments set forth in the petition, petitioner contends that the Parole Board, in making its determination, placed too much weight on the seriousness of the crime for which he was convicted. In his view, the Board failed to give adequate consideration to his institutional programming and other relevant information regarding his rehabilitation. He points out that he successfully participated in the ART program; that he has an educational certificate in drafting; and that he has worked as a teacher's aid in drafting. He indicates that he has been enrolled in the Department of Labor's apprenticeship program in architectural drafting, which he completed in November 2006. In petitioner's view, the Board erred in not considering his institutional programming. He maintains that the failure to grant release was tantamount to a re-sentencing. He maintains that the Parole Board failed to take into
consideration that the petitioner took fill1 respnnsibility fm his crime in entpring a plea of

guilty. Petitioner criticizes the Board for failing to provide guidance to petitioner with regard to his future conduct. In his view the determination was the result of an administrative policy established by Governor Pataki to deny parole to violent felony offenders, and cites certain statistics to document his claims. The reasons for the respondent's determination to deny petitioner release on parole

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are set forth as follows: "After a careful review of your record, a personal interview, and deliberation, parole is denied. Your institutional adjustment and release plans have been noted. So too is your instant offense, which involves you stabbing and causing the death of another human being. When all relevant factors are considered, this panel concludes that discretionary release at this time would deprecate the seriousness of your criminal conduct and undermine respect for the law.''
As stated in Executive Law $259-i (2) (c) (A):

"Discretionary release on parole shall not be granted merely as a reward for good conduct or efficient performance of duties while confined but after considering if there is a reasonable probability that, if such inmate is released, he will live and remain at liberty without violating the law, and that his release is not incompatible with the welfare of society and will not so deprecate the seriousness of his crime as to undermine respect for law. In making the parole release decision, the guidelines adopted pursuant to subdivision four of section two hundred fifty-nine-c of this article shall require that the following be considered: (i) the institutional record including program goals and accomplishments, academic achievements, vocational education, training or work assignments, therapy and interpersonal relationships with staff and inmates; (ii) performance, if any, as a participant in a temporary release p r o p m ; (iii) release plans inchiding community resourcea, employment, education and training and support services available to the inmate; (iv) any deportation order issued by the federal government against the inmate [I; (v) any statement made to the board by the crime victim or the victim's representative [I" (Executive Law $2594 [2] [c] [A]). "Parole Release decisions are discretionary and, if made pursuant to statutory requirements, not reviewable" (Matter of Sinonoli v New York State Board of Parole, 189 AD2d 960,960 [3rd Dept., 19931, citing Matter of McKee v. New York State Bd. of Parole, 3

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157 AD2d 944). If the parole board`s decision is made in accordance with the statutory requirements, the board`s determination is not subject to judicial review

(see Ristau v.

Hammock, 103 AD2d 944 [3rd Dept., 19841). Furthermore, only a "showing of irrationality bordering on impropriety" on the part of the Parole Board has been found to necessitate judicial intervention

(see

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 [ 19801). In the absence of the above, there is no basis upon which to disturb the discretionary determination made by the Parole Board

(see

Matter of I)CI.L-/

` ~ d cd Si;irc

L l ~Ji> J t U l of

Parole, 294

AD2d 726 [3rd Dept., 20021). The Court finds that the Parole Board considered the relevant criteria in making its decision and its determination was supported by the record. A review of the transcript of the parole interview reveals that, in addition to mentioning the instant offense, petitioner discussed such factors as his institutional programming, his disciplinary record, his plans upon release, and his family. The decision was sufficiently detailed to inform the petitioner of the reawns fm the denial of parole find it snticfied the requirement4 of Eucciitive L ~ w $259-i (seeMatter of Whitehead v. Russi, 20 1 AD2d 825 [3rd Dept., 19941; Matter of Green
b Division dPar~uic, AD2d 677 [3rd Dept., 19931). It is proper and, 199 v. New l * d ~ a t z

in fact, required, that the Parole Board consider the seriousness of the inmate's crimes and their violent nature (see Matter 01' heir v. New k'ork State Llivision of Parole, 205 AD2d 906, 907 [3rd Dept., 19941; Matter of SinoDoli v. New York State Board of Parole, 189

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AD2d 960, sutxa; Matter of Dudley v Travis, 227 AD2d 863, [3rd Dept., 1996), as well as the inmate's criminal history (seeMatter of Farid v Travis, 239 AD2d 629 [3rd Dept., 19971; Matter of Cohen v Gonzalez, 254 AD2d 556 [3rd Dept., 19981). The Parole Board is not required to enumerate or give equal weight to each factor that it considered in determining the inmate'sapplication, or to expressly discuss each one (seeMatter of Farid v Travis, supra; Matter of Moore v New York State Bd. of Parole, 233 AD2d 653 [3rd Dept., 19961; Matter of Collado v New York State Division ofparole, 287 AD2d 92 1 [3rd Dept., 200 11).Nor must the parole board recite the precise statutory language set forth in the first sentence of Executive Law Dept., 20061).

8 259-i (2) (c) (A) (see Matter of Silvero v Dennison, 28 AD3d 859 [3rd
In other words, "[wlhere appropriate the Board may give considerable

weight to, or place particular emphasis on, the circumstances of the crimes for which a petitioner is incarcerated, as well as a petitioner's criminal history, together with the other statutory factors, in determining whether the individual `will live and remain at liberty without violating the law,' whether his or her `release is not incompatible with the welfare
of society,' and whether release will `deprecate the seriousneq? of [the] crime nc to

undermine respect for [the] law"' (Matter of Durio v New York State Division of Parole, 3 AD3d 816 [3rd Dept., 20041, quoting Executive Law 8259-i [2] [c] [A], other citations omitted). Petitioner's claims that the determination to deny parole is tantamount to a resentencing, in violation of the Double Jeopardy Clauses's prohibition against multiple

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punishments are conclusory and without merit

(see Matter of Bockeno v New York State

Parole Roiir-tl,237 AD2d 75 1 [3'd Dept., 19961;M-atter of Crews v New York State Executive
Department Board of Appeals Unit, 281 AD2d 672 [3rdDept., 20011; Matter of Evans v Dennison, 13 Misc3d 1236A, [Sup. Ct., Westchester Co., 20061). Moreover, it is well settled that the Parole Board is vested with the discretion to determine whether release was appropriate notwithstanding the fact that the sentencing court set this as the minimum term

of petitioner's sentence (see Matter of Silmon v Travis, 95 NY2d 470,476 [2000]; Matter
of Codv v Dennison, 33 AD2d 1141, 1142 [3rdDept., 20061 Iv denied [January 16,20071). The record does not support petitioner's assertion that the decision was predetermined consistent with an alleged executive branch policy mandating denial of parole to all violent felony offenders. The Court, accordingly, finds no merit to the argument (see Matter of Lue-Shinn v Pataki, 301 AD2d 827, 828 [3rd Dept., 20031; Matter of Perez v State of New NY2d

York Division of Parole, 294 AD2d 726 [3rd Dept., 20021; Matter of Jones v Travis, 293
AD2d 800,801 [3rd Dept., 20021; Matter ofLittle v Travis, 15 AD3d 698 [3rd Dept., 20051, Matter of Wood v Dennison, 25 AD3d 1056 [3rd Dept., 20061). The Parole Board's decision to hold petitioner for the maximum period (24 months) Matter of Tatta v State is within the Board's discretion and was supported by the record (see, ofNew York, Division of Parole, 290 AD2d 907 [3rd Dept., 20021, lv denied 98 NY2d 604). The Court has reviewed petitioner's remaining arguments and finds them to be without

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merit. The Court finds the decision of the Parole Board was not irrational, in violation of lawful procedure, affected by an error of law, irrational or arbitrary and capricious. The petition iizust therefore be dismissed. Accordingly, it is
ORDERED and ADJUDGED, that the petition be and hereby is dismissed.

This shall constitute the decision, order and judgment of the Court. All papers are returned to the attorney for the respondent who is directed to enter this Decision/Order/Judgment without notice and to serve petitioner with a copy of this DecisiodOrder with notice of entry. ENTER

I

Troy, New York
George B. Ceresia, Jr. Papers Considered:
1.

2.

Order To Show Cause dated October 24, 2006, Petition, Supporting Papers and Exhibits Respondent's Answer dated January 10,2007, Supporting Papers and Exhibits

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