State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: March 19, 2015 519178
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In the Matter of DANG TRAN,
Appellant,
v MEMORANDUM AND ORDER
ANDREA D. EVANS, as Chair of
the Division of Parole,
Respondent.
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Calendar Date: January 20, 2015
Before: McCarthy, J.P., Garry, Lynch and Devine, JJ.
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Dang Tran, Woodbourne, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany (Laura
Etlinger of counsel), for respondent.
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Appeal from a judgment of the Supreme Court (LaBuda, J.),
entered May 23, 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.
In 1995, while on probation, petitioner shot three
individuals, killing one of them. He was subsequently convicted
of murder in the second degree and attempted murder in the second
degree (two counts) and sentenced to an aggregate prison term of
18 years to life. In July 2013, petitioner made his initial
appearance before the Board of Parole seeking to be released to
parole supervision. Following a hearing, his request was denied
and he was ordered held an additional 24 months. Petitioner
filed an administrative appeal and, when it was not decided
within four months, then commenced this CPLR article 78
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proceeding. Following joinder of issue, Supreme Court dismissed
the petition and this appeal ensued.
We affirm. Where the Board has complied with the statutory
requirements governing parole procedures, "[j]udicial
intervention is warranted only when there is a showing of
irrationality bordering on impropriety" (Matter of Mercado v
Evans, 120 AD3d 1521, 1522 [2014] [internal quotation marks and
citation omitted]; accord Matter of Hamilton v New York State
Div. of Parole, 119 AD3d 1268, 1269 [2014]). Here, the record
reveals that the Board considered the serious nature of
petitioner's crimes, together with other relevant statutory
factors, including his clean prison disciplinary record, his
programming accomplishments, the available sentencing minutes,
the existence of a deportation order, the COMPAS Risk and Needs
Assessment instrument and his plans upon release (see Executive
Law § 259-i [c] [2] [A] [i]-[viii]; Matter of Mercado v Evans,
120 AD3d at 1522).
We have previously considered and rejected petitioner's
argument that the Board did not comply with the 2011 amendments
to Executive Law § 259-c (4) (see Matter of Montane v Evans, 116
AD3d 197, 202-203 [2014], appeal dismissed 24 NY3d 1052 [2014]).
Similarly, as petitioner was admitted to state custody in 1997,
his contention that the Board failed to comply with the statutory
mandate requiring the development of a transitional
accountability plan for inmates in prison, as is set forth in
Correction Law § 71-a, is unpersuasive (see Matter of Rivera v
New York State Div. of Parole, 119 AD3d 1107, 1109 [2014]; see
also Matter of Delacruz v Annucci, 122 AD3d 1413, 1414 [2014]).
Upon review, we find that the Board's determination
complies with the statutory requirements, and does not evince
"irrationality bordering on impropriety" (Matter of Hamilton v
New York State Div. of Parole, 119 AD3d at 1269 [internal
quotation marks and citations omitted]; accord Matter of Molinar
v New York State Div. of Parole, 119 AD3d 1214, 1216 [2014]).
Accordingly, it will not be disturbed. Petitioner's remaining
arguments have been considered and found to be lacking in merit.
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McCarthy, J.P., Garry, Lynch and Devine, JJ., concur.
ORDERED that the judgment is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court