State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: July 17, 2014 518255
________________________________
In the Matter of ROGELIOS
MOLINAR,
Appellant,
v MEMORANDUM AND ORDER
NEW YORK STATE DIVISION OF
PAROLE,
Respondent.
________________________________
Calendar Date: June 9, 2014
Before: Peters, P.J., Stein, McCarthy, Garry and Lynch, JJ.
__________
Rogelios Molinar, Marcy, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany (Zainab A.
Chaudhry of counsel), for respondent.
__________
Lynch, J.
Appeal from a judgment of the Supreme Court (Zwack, J.),
entered January 21, 2014 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.
Petitioner was convicted in 1990 of murder in the second
degree and is currently serving a prison sentence of 20 years to
life. In September 2012, he reappeared before the Board of
Parole, which denied his request for release and ordered him held
for an additional 24 months. Petitioner commenced this CPLR
article 78 proceeding to challenge the Board's determination
after he failed to receive a timely response to his
-2- 518255
administrative appeal. Supreme Court dismissed the petition,
prompting this appeal.
Contrary to petitioner's initial contention, Supreme Court
is "a single, statewide court with statewide jurisdiction" and
had authority to consider his petition (Matter of Murphy v
Milonas, 234 AD2d 109, 110 [1996]; see Matter of Schneider v
Aulisi, 307 NY 376, 381 [1954]). Turning to the merits, "[i]t is
well settled that parole release decisions are discretionary and
will not be disturbed so long as the Board complied with the
statutory requirements of Executive Law § 259–i" (Matter of De
Los Santos v Division of Parole, 96 AD3d 1321, 1322 [2012]
[citations omitted]; see Matter of Montane v Evans, 116 AD3d 197,
202 [2014], lv granted 23 NY3d 903 [2014]). The Board considered
the relevant statutory factors, including the seriousness of the
underlying conviction, petitioner's prison disciplinary record,
his program participation, his plan, if released, to return to
his family in Panama, and an assessment of the risk and needs
upon release.
The Board properly considered the deliberate nature of the
murder (see Matter of Partee v Evans, 117 AD3d 1258, 1258
[2014]), for which petitioner continues to deny responsibility.
Contrary to petitioner's argument, the record, including the
confidential inmate status report, reveals that the Board was
aware of an affidavit wherein the victim's son purportedly
explains that the victim terminated his own life while
recuperating in the hospital. Notably, petitioner did not raise
the affidavit or its content during the interview and the Board
was not obligated to discuss it or address it in its decision
(see Matter of Wah Zhang v Travis, 10 AD3d 828, 829 [2004]).
Remarkably, when asked about his disciplinary infractions,
petitioner explained that the infractions were "invented" by the
correction officers because they were not busy. These points
illustrate petitioner's continuing failure to acknowledge
responsibility for his conduct, raising a plausible concern as to
whether he has made any progress towards rehabilitation. We also
note that while the record indicates that petitioner is subject
to an immigration detainer warrant, there was no showing made
that a deportation order has been issued and, in any event, an
order is only one factor for the Board to consider (see Executive
-3- 518255
Law § 259-i [2] [c] [A] [iv]; Matter of Kelly v Hagler, 94 AD3d
1301, 1302 [2012]).
The Board found that denial of parole was warranted after
examining all of the foregoing factors and, inasmuch as that
determination does not reflect "irrationality bordering on
impropriety," we affirm (Matter of Russo v New York State Bd. of
Parole, 50 NY2d 69, 77 [1980]; see Matter of Partee v Evans, 117
AD3d at 1258).
Peters, P.J., Stein, McCarthy, Garry and Lynch, JJ.,
concur.
ORDERED that the judgment is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court