Matter of Montalvo v New York State Bd. of Parole
2008 NY Slip Op 03559 [50 AD3d 1438]
April 24, 2008
Appellate Division, Third Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, June 18, 2008


In the Matter of David Montalvo, Appellant, v New York State Board of Parole, Respondent.

—[*1] David Montalvo, Woodbourne, appellant pro se.

Andrew M. Cuomo, Attorney General, Albany (Frank Brady of counsel), for respondent.

Appeal from a judgment of the Supreme Court (McNamara, J.), entered November 9, 2007 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent denying his request for parole release.

In 1992, petitioner was convicted upon his plea of guilty of manslaughter in the first degree and reckless endangerment in the first degree and sentenced to an aggregate prison term of 101/3 to 31 years. In September 2006, petitioner made his third appearance before respondent and his request for parole release was denied. Petitioner thereafter commenced this CPLR article 78 proceeding challenging that determination. Following joinder of issue, Supreme Court dismissed the petition, prompting this appeal.

Contrary to petitioner's contentions, respondent considered the appropriate statutory factors in denying his request for parole release (see Executive Law § 259-i). The record reflects that, in addition to the nature and seriousness of the instant offense, in which petitioner shot and killed a young man during a group altercation, respondent also considered petitioner's exemplary institutional, academic and disciplinary record, his lack of a criminal history, his positive family and community support, and potential employment opportunities (see Executive Law § 259-i). However, respondent was not required to give each factor equal weight (see Matter of Martin v New York State Div. of Parole, 47 AD3d 1152, 1152 [2008]) and was free to place emphasis on the seriousness of the instant offense. As it cannot be said that respondent's decision to deny petitioner's request for parole release was affected by " '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]), it will not be disturbed (see Matter of Cruz v New York State Div. of Parole, 39 AD3d 1060, 1062 [2007]).

Petitioner's remaining contentions have been considered and determined to be without merit.

Spain, J.P., Carpinello, Malone Jr., Kavanagh and Stein, JJ., concur. Ordered that the judgment is affirmed, without costs.