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

414
CA 13-01119
PRESENT: SMITH, J.P., FAHEY, PERADOTTO, SCONIERS, AND VALENTINO, JJ.


IN THE MATTER OF RICHARD ROBLES,
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 (VICTOR PALADINO 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 New York State Division of Parole (Parole Board)
in May 2012, denying him parole release. We agree with petitioner
that his appeal is not moot inasmuch as the determination has not
expired during the pendency of this appeal, and he has not reappeared
before the Parole Board (cf. Matter of Robles v Evans, 100 AD3d 1455,
1455). We nevertheless reject the contention of petitioner that
Supreme Court erred in determining that the Parole Board properly
denied parole release. “Discretionary release on parole shall not be
granted merely as a reward for good conduct or efficient performance
of duties while confined” (Executive Law § 259-i [2] [c] [A]; see
Matter of Silmon v Travis, 95 NY2d 470, 476). We conclude that the
record establishes that the Parole Board considered the relevant
factors in determining that petitioner’s release would be incompatible
with the welfare of society and would so deprecate the serious nature
of his crimes as to undermine respect for the law (see § 259-i [c]
[A]), and petitioner has made no “ ‘showing of irrationality bordering
on impropriety’ ” to warrant judicial intervention (Silmon, 95 NY2d at
476; see Matter of Russo v New York State Bd. of Parole, 50 NY2d 69,
77; Matter of Montane v Evans, ___AD3d ___, ___ [Mar. 13, 2014]). We
further conclude that the Parole Board properly considered the COMPAS
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                                                         CA 13-01119

instrument, which was “intended to bring the [Parole] Board into
compliance with recent amendments” to section 259-c (4) of the
Executive Law (see Matter of Malerba v Evans, 109 AD3d 1067, 1067, lv
denied 22 NY3d 858). We reject petitioner’s further contention that
the court erred in determining that, under the circumstances presented
here, the Parole Board was not required to consider his sentencing
minutes. The record establishes that petitioner’s sentencing
minutes—from 1966—are unavailable (see Matter of Freeman v Alexander,
65 AD3d 1429, 1430).




Entered:   May 9, 2014                          Frances E. Cafarell
                                                Clerk of the Court
