SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
761
CA 15-00051
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND WHALEN, JJ.
IN THE MATTER OF LEONARD FISCHER,
PETITIONER-RESPONDENT,
V MEMORANDUM AND ORDER
MICHAEL GRAZIANO, SUPERINTENDENT, COLLINS
CORRECTIONAL FACILITY, AND TINA M. STANFORD,
CHAIRWOMAN, NEW YORK STATE BOARD OF PAROLE,
RESPONDENTS-APPELLANTS.
ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (HILLEL DEUTSCH OF
COUNSEL), FOR RESPONDENTS-APPELLANTS.
LEONARD FISCHER, PETITIONER-RESPONDENT PRO SE.
Appeal from a judgment (denominated order) of the Supreme Court,
Erie County (John L. Michalski, A.J.), entered September 15, 2014 in a
proceeding pursuant to CPLR article 78. The judgment vacated the
determination of the New York State Board of Parole to deny petitioner
parole release and directed a de novo hearing.
It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law without costs and the petition is
dismissed.
Memorandum: Petitioner commenced this CPLR article 78 proceeding
seeking to vacate the determination of the New York State Board of
Parole (Board) denying his release to parole supervision. Respondents
appeal from a judgment granting the petition and directing a de novo
hearing before a different panel. We reverse the judgment and dismiss
the petition. “It is well settled that parole release decisions are
discretionary and will not be disturbed so long as the Board complied
with the statutory requirements enumerated in Executive Law § 259-i”
(Matter of Gssime v New York State Div. of Parole, 84 AD3d 1630, 1631,
lv dismissed 17 NY3d 847; see Matter of Delacruz v Annucci, 122 AD3d
1413, 1413). The Board is “not required to give equal weight to each
of the statutory factors” but, rather, may “place[] greater emphasis
on the severity of the crimes than on the other statutory factors”
(Matter of MacKenzie v Evans, 95 AD3d 1613, 1614, lv denied 19 NY3d
815; see Delacruz, 122 AD3d at 1413). “Judicial intervention is
warranted only when there is a ‘showing of irrationality bordering on
impropriety’ ” (Matter of Silmon v Travis, 95 NY2d 470, 476; see
Matter of Gaston v Berbary, 16 AD3d 1158, 1159). Here, we conclude
upon our review of the hearing transcript and the Board’s written
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CA 15-00051
decision that the Board properly considered the required statutory
factors and adequately set forth its reasons for denying petitioner’s
application for release (see Matter of Siao-Pao v Dennison, 11 NY3d
777, 778, rearg denied 11 NY3d 885). We further conclude that there
was no showing of “ ‘irrationality bordering on impropriety’ ”
(Silmon, 95 NY2d at 476).
Entered: July 2, 2015 Frances E. Cafarell
Clerk of the Court