                           State of New York
                    Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: December 15, 2016                    522891
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In the Matter of JOSE ALMONTE,
                    Appellant,
      v                                      MEMORANDUM AND ORDER

NEW YORK STATE BOARD OF PAROLE,
                    Respondent.
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Calendar Date:    October 25, 2016

Before:    Peters, P.J., Egan Jr., Lynch, Clark and Aarons, JJ.

                              __________


        Jose Almonte, Pine City, appellant pro se.

      Eric T. Schneiderman, Attorney General, Albany (Brian D.
Ginsberg of counsel), for respondent.

                              __________


      Appeal from a judgment of the Supreme Court (McCarthy, J.),
entered March 23, 2016 in Albany County, which dismissed
petitioner's application, in a proceeding pursuant to CPLR
article 78, to review a determination of respondent denying
petitioner's request for parole release.

      In 1992, petitioner was convicted of murder in the second
degree and robbery in the first degree.1 He was sentenced to
concurrent prison terms of 25 years to life for the murder
conviction and 8a to 25 years on the robbery conviction. In


    1
        Petitioner was also convicted at that time on a second
count of murder in the second degree and criminal possession of a
weapon in the second degree. Those convictions were subsequently
reversed and the sentences imposed on them vacated (People v
Almonte, 223 AD2d 593 [1996], lv denied 88 NY2d 979 [1996]).
                              -2-                522891

July 2015, petitioner appeared before respondent and, at the
conclusion of the hearing, respondent denied petitioner's request
for release and ordered that he be held for 24 months. The
determination was affirmed on administrative appeal, and
petitioner commenced this CPLR article 78 proceeding. Following
joinder of issue, Supreme Court dismissed the petition, and
petitioner now appeals.

      We affirm. "[P]arole decisions are discretionary and will
not be disturbed so long as [respondent] complied with the
statutory requirements of Executive Law § 259-i" (Matter of Ruiz
v New York State Div. of Parole, 70 AD3d 1162, 1163 [2010]; see
Matter of Furman v Annucci, 138 AD3d 1269, 1270 [2016], lv
dismissed 27 NY3d 1188 [2016]). Here, respondent denied release
based upon the seriousness of the offense, petitioner's poor
institutional record, his drug use, numerous tier infractions and
his removal from institutional programs.

      We reject petitioner's contention that he is entitled to a
new parole hearing due to respondent's failure to consider his
sentencing minutes. Although respondent denied release without
considering the sentencing minutes, we find such error to be
harmless, inasmuch as our review reflects that the sentencing
minutes were included as an exhibit to the petition and reveal
that the sentencing court made no parole recommendations (see
Matter of Matos v New York State Bd. of Parole, 87 AD3d 1193,
1194 [2011]; Matter of Cruz v Alexander, 67 AD3d 1240, 1241
[2009]; compare Matter of Duffy v New York State Dept. of Corr. &
Community Supervision, 132 AD3d 1207, 1208 [2015]). We note that
petitioner was sentenced to the maximum term of imprisonment on
the robbery conviction (see Penal Law § 70.00 [2] [b]; [3] [b])
and to the longest minimum term of 25 years for the murder
conviction (see Penal Law § 70.00 [3] [a] [i]). Although the
sentences were ordered to run concurrently, there is no
indication in the sentencing minutes that this was intended as a
parole recommendation. Given that respondent's decision does not
exhibit "irrationality bordering on impropriety" (Matter of
Silmon v Travis, 95 NY2d 470, 476 [2000] [internal quotation
marks and citation omitted]), it will not be disturbed.
                              -3-                  522891

      Peters, P.J., Egan Jr., Lynch, Clark and Aarons, JJ.,
concur.



     ORDERED that the judgment is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
