State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: September 25, 2014 518641
________________________________
In the Matter of DAVID
MERCADO,
Appellant,
v MEMORANDUM AND ORDER
ANDREA EVANS, as Chair of the
Division of Parole,
Respondent.
________________________________
Calendar Date: August 4, 2014
Before: Garry, J.P., Egan Jr., Lynch, Devine and Clark, JJ.
__________
David Mercado, Woodbourne, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany (Zainab A.
Chaudhry of counsel), for respondent.
__________
Appeal from a judgment of the Supreme Court (LaBuda, J.),
entered February 20, 2014 in Sullivan 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 is serving a sentence of 22 years to life upon
his conviction of murder in the second degree. The conviction
arose from a March 1991 incident in which petitioner, who had
consumed a significant amount of alcohol and cocaine, killed a
taxi driver by shooting him in the back, neck and shoulders as
the taxi drove away. In December 2012, petitioner made his
initial appearance before the Board of Parole, which denied his
request for release and ordered him held for an additional 24
months. After he did not receive a timely response to his
-2- 518641
administrative appeal, petitioner commenced this CPLR article 78
proceeding. Supreme Court dismissed the petition, prompting this
appeal.
We affirm. Where the Board has complied with the statutes
governing parole procedures, "[j]udicial intervention is
warranted only when there is a showing of irrationality bordering
on impropriety" (Matter of Silmon v Travis, 95 NY2d 470, 476
[2000] [internal quotation marks and citation omitted]; accord
Matter of Hamilton v New York State Div. of Parole, 119 AD3d
1268, 1269 [2014]). Contrary to petitioner's argument, the Board
considered the relevant statutory factors, including petitioner's
criminal history and the nature of the crime, vocational and
educational accomplishments, prison disciplinary record, COMPAS
Risk and Needs Assessment instrument, and his postrelease plans
(see Executive Law § 259-i [2] [c] [A]; Matter of Partee v Evans,
117 AD3d 1258, 1259 [2014], lv denied ___ NY3d ___ [Sept. 4,
2014]; Matter of Lashway v Evans, 110 AD3d 1417, 1418 [2013]).
The "Board need not expressly discuss each of these guidelines in
its determination" (Matter of King v New York State Div. of
Parole, 83 NY2d 788, 791 [1994]), and it is entitled to place a
greater emphasis on the serious nature of the crime (see Matter
of Hamilton v New York State Div. of Parole, 119 AD3d at 1271;
Matter of Partee v Evans, 117 AD3d at 1259; Matter of Lashway v
Evans, 110 AD3d at 1418), as it did here. Although the Board's
decision contained a factual misstatement regarding whether the
fatal shot struck petitioner's victim in the head rather than the
neck, there is no suggestion that its determination was affected
by the discrepancy to any meaningful extent (see Matter of Singh
v Evans, 107 AD3d 1274, 1275 [2013]). Inasmuch as the Board's
decision does not evince irrationality bordering on impropriety,
it must be affirmed.
Petitioner's remaining arguments have been considered and
found to be lacking in merit.
Garry, J.P., Egan Jr., Lynch, Devine and Clark, JJ.,
concur.
-3- 518641
ORDERED that the judgment is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court