State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: April 23, 2015 519523
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In the Matter of DOMINGO
BORGES,
Appellant,
v MEMORANDUM AND ORDER
TINA M. STANFORD, as Chair
of the Board of Parole,
Respondent.
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Calendar Date: February 24, 2015
Before: Peters, P.J., Rose, Egan Jr. and Devine, JJ.
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Domingo Borges, Woodbourne, appellant pro se.
Eric T. Schneiderman, Attorney General, Albany (Frank Brady
of counsel), for respondent.
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Appeal from a judgment of the Supreme Court (McGrath, J.),
entered June 25, 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.
In 1993, petitioner was convicted of murder in the second
degree and was sentenced to 15 years to life in prison. In July
2013, he made his fourth appearance before the Board of Parole
seeking to be released to parole supervision. Following a
hearing, the Board denied his request and ordered him held an
additional 24 months. Petitioner took an administrative appeal
and, when a decision was not timely rendered, he commenced this
CPLR article 78 proceeding. After issue was joined, Supreme
Court dismissed the petition and petitioner now appeals.
-2- 519523
Initially, we find no merit to petitioner's claim that the
Department of Corrections and Community Supervision erred in
failing to devise a transitional accountability plan for the
Board to consider in evaluating petitioner's suitability for
parole release. This requirement was added by a 2011 amendment
to Correction Law § 71-a and applies to inmates admitted to
prison after its effective date (see L 2011, ch 62, § 1, part C,
§ 1, subpart A, §§ 16-a, 49 [h]), not to petitioner who entered
prison 18 years earlier (see Matter of Delacruz v Annucci, 122
AD3d 1413, 1414 [2014]; Matter of Rivera v New York State Div. of
Parole, 119 AD3d 1107, 1108 [2014]). Moreover, contrary to
petitioner's claim, the record discloses that the Board
considered the relevant statutory factors set forth in Executive
Law § 259-i in making its decision. Indeed, the Board took into
account the serious nature of petitioner's crime, his criminal
history, his prison disciplinary record, his program and
educational accomplishments and his postrelease plans, and also
considered his scoring on the COMPAS Risk and Needs Assessment
instrument (see Matter of Mercado v Evans, 120 AD3d 1521, 1522
[2014]; Matter of Khatib v New York State Bd. of Parole, 118 AD3d
1207, 1208 [2014]). Petitioner's further claim that his
application was decided by only one Board member is belied by the
record which indicates that the requisite two Board members were
present at the hearing and decided his application (see 9 NYCRR
8002.2 [b]). We find no merit to petitioner's remaining
arguments. Therefore, given that the Board's decision does not
evince "'irrationality bordering on impropriety'" (Matter of
Partee v Evans, 117 AD3d 1258, 1259 [2014], lv denied 24 NY3d 901
[2014], quoting Matter of Russo v New York State Bd. of Parole,
50 NY2d 69, 77 [1980]), there is no reason to disturb it.
Peters, P.J., Rose, Egan Jr. and Devine, JJ., concur.
-3- 519523
ORDERED that the judgment is affirmed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court