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.

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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