State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: March 3, 2016 521583 

________________________________

In the Matter of ANTOINE 

MOORE,

Appellant,

v MEMORANDUM AND ORDER

NEW YORK STATE BOARD OF PAROLE,

Respondent.

________________________________

Calendar Date: January 19, 2016

Before: McCarthy, J.P., Rose, Lynch and Clark, JJ.

__________

Antoine Moore, Beacon, appellant pro se.

Eric T. Schneiderman, Attorney General, Albany (Frederick

A. Brodie of counsel), for respondent.

__________

Appeal from a judgment of the Supreme Court (Zwack, J.),

entered May 27, 2015 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.

Petitioner was convicted of murder in the second degree and

sentenced to 15 years to life in prison. H was released to

parole supervision and, while on parole, he was involved in an

incident in which he choked his young female cousin until she

lost consciousness. As a result, his parole was revoked and he

was convicted of, among other things, attempted assault in the

second degree and sentenced to 11⁄2 to 3 years in prison. In

November 2013, petitioner made his third appearance before

respondent seeking again to be released to parole supervision. 

Following a hearing, respondent denied petitioner's request and
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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

joinder of issue, Supreme Court dismissed the petition and this

appeal ensued.1 

Initially, we find no merit to petitioner's claim that

respondent failed to promulgate written procedures for use in

making parole decisions in accordance with the 2011 amendments to

Executive Law § 259-c (4). This very argument was considered and

rejected by this Court in Matter of Montane v Evans (116 AD3d 197

[2014], appeal dismissed 24 NY3d 1052 [2014]), which is

controlling here (see Matter of Hill v New York State Bd. of

Parole, 130 AD3d 1130, 1131 [2015]).2 Contrary to petitioner's

assertion, the record reveals that respondent considered the

relevant factors set forth in Executive Law § 259-i in evaluating

his request for parole release, including not only the

seriousness of petitioner's crimes, but also his criminal

history, prison disciplinary record, program accomplishments and

postrelease plans, as well as the sentencing minutes and the

COMPAS Risk and Needs Assessment instrument (see Matter of Hill v

New York State Bd. of Parole, 130 AD3d at 1130; Matter of Diaz v

New York State Dept. of Corrections & Community Supervision, 127

AD3d 1493, 1494 [2015]). Significantly, respondent was not

required to give each factor equal weight and could place greater

emphasis on the gravity of petitioner's crimes (see Matter of

Feilzer v New York State Div. of Parole, 131 AD3d 1321, 1322

[2015]; Matter of Martinez v Evans, 108 AD3d 815, 816 [2013]). 

We have considered petitioner's remaining arguments and find them

to be unavailing. Given that respondent's decision does not

exhibit "irrationality bordering on impropriety" (Matter of

1 Petitioner requested postponement of his November 2015

reappearance before respondent pending the resolution of this

appeal.

2 In any event, we note that respondent has since adopted

formal regulations governing parole release decisions (see 9

NYCRR 8002.3) that are applicable to petitioner's next

appearance. 
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Silmon v Travis, 95 NY2d 470, 476 [2000] [internal quotation

marks and citation omitted]), we find no reason to disturb it.

McCarthy, J.P., Rose, Lynch and Clark, JJ., concur.

ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court