                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: May 19, 2016                       521134
________________________________

In the Matter of TONIE WILEY,
                    Appellant,
      v
                                             MEMORANDUM AND ORDER
STATE OF NEW YORK DEPARTMENT
   OF CORRECTIONS AND
   COMMUNITY SUPERVISION,
                    Respondent.
________________________________


Calendar Date:   April 18, 2016

Before:    Lahtinen, J.P., McCarthy, Garry, Rose and Aarons, JJ.

                              __________


     Tonie Wiley, Collins, appellant pro se.

      Eric T. Schneiderman, Attorney General, Albany (Frank Brady
of counsel), for respondent.

                              __________


Rose, J.

      Appeal from a judgment of the Supreme Court (Ceresia, J.),
entered April 16, 2015 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 1989, petitioner was convicted of murder in the second
degree, among other charges. Petitioner used trickery while on
parole to gain access to a woman's home, where he terrorized her,
removed her clothing, bound and suffocated her by tying a plastic
bag over her head, and then stole items of personal property,
including her car and her dog. He was sentenced, as a second
felony offender, to an aggregate prison sentence of 25 years to
                               -2-                521134

life. In October 2013, petitioner made his fourth appearance
before the Board of Parole seeking to be released to parole
supervision. The Board denied his request and ordered him to be
held for an additional 24 months.1 After his administrative
appeal was not timely decided, petitioner commenced this CPLR
article 78 proceeding. Supreme Court dismissed the petition in a
thorough decision addressing the merits of each of petitioner's
claims, prompting this appeal.

      We affirm. Parole release decisions, made after a case-by-
case factual review of an inmate's application, are discretionary
and will not be disturbed so long as the Board complied with the
statutory requirements set forth in Executive Law § 259-i (see
Matter of Diaz v New York State Dept. of Corrections & Community
Supervision, 127 AD3d 1493, 1494 [2015]). Here, the record
reflects that the Board took into consideration the relevant
statutory factors, including the seriousness of these crimes,
committed only months after petitioner was released on parole for
a prior attempted rape, and his criminal history dating back to
1976. The Board also fully considered petitioner's positive
institutional record and the absence of disciplinary charges
since 1997, his postrelease plans and his rehabilitative and
educational efforts. Also taken into account, as required, was
the COMPAS Risk and Needs Assessment instrument (see Matter of
Hawthorne v Stanford, 135 AD3d 1036, 1038 [2016]). Contrary to
petitioner's claim, the Board in its discretion properly placed
greater emphasis on the present offenses, as it "was not required
to give equal weight to all requisite factors" (Matter of
Boccadisi v Stanford, 133 AD3d 1169, 1170 [2015]; see Matter of
Feilzer v New York State Div. of Parole, 131 AD3d 1321, 1322
[2015]).

      Likewise lacking in merit is petitioner's contention that
the Board failed to comply with the 2011 amendments to Executive




     1
        Petitioner's next appearance before the Board of Parole,
scheduled for October 2015, has been postponed to permit him to
pursue this appeal.
                                -3-                  521134

Law § 259-c (4).2 As Supreme Court correctly noted, the Board
was not required by the 2011 amendment to Correction Law § 71-a
to draft a transitional accountability plan for petitioner, as
this requirement only "applies to inmates admitted to prison
after its effective date" (Matter of Borges v Stanford, 127 AD3d
1491, 1491 [2015]; see Matter of Hill v New York State Bd. of
Parole, 130 AD3d 1130, 1131 [2015]). Given that the Board's
decision does not reflect "irrationality bordering on
impropriety" (Matter of Silmon v Travis, 95 NY2d 470, 476 [2000]
[internal quotation marks and citation omitted]; Matter of
Boccadisi v Stanford, 133 AD3d at 1171), it will not be
disturbed. Petitioner's remaining contentions have been reviewed
and determined to lack merit.

        Lahtinen, J.P., McCarthy, Garry and Aarons, JJ., concur.



        ORDERED that the judgment is affirmed, without costs.




                               ENTER:




                               Robert D. Mayberger
                               Clerk of the Court



    2
        Although not applicable here to petitioner's 2013
hearing, the Board has since promulgated regulations, effective
July 30, 2014, implementing the 2011 amendments to Executive Law
§ 259-c (4) (see 9 NYCRR 8002.3; Matter of Diaz v New York State
Dept. of Corrections & Community Supervision, 127 AD3d at 1494
n).
