        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

943
CA 13-01121
PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND WHALEN, JJ.


IN THE MATTER OF WALTER BYAS,
PETITIONER-APPELLANT,

                    V                             MEMORANDUM AND ORDER

BRIAN FISCHER, COMMISSIONER, NEW YORK STATE
DEPARTMENT OF CORRECTIONS AND COMMUNITY
SUPERVISION, RESPONDENT-RESPONDENT.


WYOMING COUNTY-ATTICA LEGAL AID BUREAU, WARSAW (ADAM W. KOCH OF
COUNSEL), FOR PETITIONER-APPELLANT.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (ZAINAB A. CHAUDHRY OF
COUNSEL), FOR RESPONDENT-RESPONDENT.


     Appeal from a judgment of the Supreme Court, Wyoming County (Mark
H. Dadd, A.J.), entered May 22, 2013 in a proceeding pursuant to CPLR
article 78. The judgment dismissed the petition.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.

     Memorandum: Petitioner appeals from a judgment dismissing his
petition pursuant to CPLR article 78 seeking to annul the
determination of the Parole Board denying him parole release. As an
initial matter, we reject petitioner’s contention that the 2011
amendment to Executive Law § 259-c (4) required the Parole Board to
promulgate formal procedures to focus on rehabilitation in making
parole release decisions. Instead, we agree with the Third Department
that the 2011 memorandum issued by Chairwoman Andrea Evans to Parole
Board members “sufficiently establishes the requisite procedures for
‘incorporat[ing] risk and needs principles’ into the process of making
parole release decisions” (Matter of Montane v Evans, 116 AD3d 197,
202, lv granted 23 NY3d 903). In any event, we note that the Parole
Board has promulgated regulations for “parole release decision-making
procedures,” which became effective July 30, 2014, that are consistent
with the procedures set forth in the 2011 memorandum (see 9 NYCRR
8002.3).

     We reject petitioner’s further contention that the Parole Board’s
determination denying him parole release was based entirely on the
severity of the crimes committed. The record establishes that the
Parole Board properly considered not only the crimes committed, but
also the fact that they were committed while petitioner was on parole
                                 -2-                           943
                                                         CA 13-01121

release, in addition to petitioner’s criminal history, the COMPAS risk
assessment instrument, his institutional programming and extensive
history of institutional misbehavior reports, and his plans for
release (see Matter of Robles v Fischer, 117 AD3d 1558, 1559).
Petitioner “made no showing of irrationality bordering on impropriety
to warrant judicial intervention” (id. [internal quotation marks
omitted]; see Matter of Silmon v Travis, 95 NY2d 470, 476).




Entered:   September 26, 2014                   Frances E. Cafarell
                                                Clerk of the Court
