                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 23, 2015                    519653
________________________________

In the Matter of JOSE DIAZ,
                    Appellant,
      v
                                            MEMORANDUM AND ORDER
NEW YORK STATE DEPARTMENT
   OF CORRECTIONS AND
   COMMUNITY SUPERVISION
   et al.,
                    Respondents.
________________________________


Calendar Date:   February 24, 2015

Before:   Peters, P.J., Lahtinen, Garry and Rose, JJ.

                             __________


     Jose Diaz, Otisville, appellant pro se.

      Eric T. Schneiderman, Attorney General, Albany (Victor
Paladino of counsel), for respondents.

                             __________


      Appeal from a judgment of the Supreme Court (Platkin, J.),
entered July 30, 2014 in Albany County, which dismissed
petitioner's application, in a proceeding pursuant to CPLR
article 78, to review a determination of respondent Board of
Parole denying petitioner's request for parole release.

      Petitioner was convicted of various crimes, including
murder in the second degree, and was sentenced to an aggregate
term of 15 years to life in prison. In April 2013, he made his
fifth appearance before respondent Board of Parole seeking to be
released to parole supervision. The Board denied his request and
ordered him held for an additional 24 months. Petitioner took an
administrative appeal and, when it was not decided within four
months, he commenced this CPLR article 78 proceeding. Following
                                -2-                519653

service of respondents' answer, Supreme Court dismissed the
petition and petitioner now appeals.

      Initially, it is well established that parole release
decisions are discretionary and will not be disturbed provided
that the Board complied with the statutory requirements set forth
in Executive Law § 259-i (see Matter of Delacruz v Annucci, 122
AD3d 1413, 1413 [2014]; Matter of Molinar v New York State Div.
of Parole, 119 AD3d 1214, 1215 [2014]). Contrary to petitioner's
claim, the Board considered the relevant statutory factors,
including the serious nature of petitioner's crimes, his criminal
history, his prison disciplinary record, his program
accomplishments and his postrelease plans, as well as the
sentencing minutes and the COMPAS Risk and Needs Assessment
instrument (see Matter of Delrosario v Evans, 121 AD3d 1152, 1153
[2014]; Matter of Rivers v Evans, 119 AD3d 1188, 1188 [2014]).
Significantly, the Board was not required to place equal weight
upon each statutory factor that it considered (see Matter of
Singh v Evans, 118 AD3d 1209, 1210 [2014], lv denied 24 NY3d 906
[2014]; Matter of Shark v New York State Div. of Parole, 110 AD3d
1134, 1134 [2013], lv dismissed 23 NY3d 933 [2014]). Moreover,
in light of our decision in Matter of Montane v Evans (116 AD3d
197, 202 [2014], appeal dismissed 24 NY3d 1052 [2014]), we find
that the Board adequately complied with the 2011 amendments to
Executive Law § 259-c (4).1 We have considered petitioner's
remaining contentions and find them to be unavailing. Given that
the Board's decision does not exhibit "'irrationality bordering
on impropriety'" (Matter of Silmon v Travis, 95 NY2d 470, 476
[2000], quoting Matter of Russo v New York State Bd. of Parole,
50 NY2d 69, 77 [1980]), we find no reason to disturb it.

        Peters, P.J., Lahtinen, Garry and Rose, JJ., concur.


    1
        Subsequent to the Board's April 2013 decision denying
petitioner parole, the Board promulgated formal regulations
governing parole release procedures (see 9 NYCRR 8002.3) and, as
a result, the Court of Appeals dismissed the appeal as moot in
Matter of Montane v Evans (supra). Insofar as the April 2013
decision was rendered well before these regulations took effect,
petitioner may not challenge them here.
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ORDERED that the judgment is affirmed, without costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
