State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: September 25, 2014 518358 

________________________________

In the Matter of SHAUN

THOMPSON,

Appellant,

v MEMORANDUM AND ORDER

NEW YORK STATE BOARD OF

PAROLE,

Respondent.

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Calendar Date: August 4, 2014

Before: Peters, P.J., Lahtinen, Lynch, Devine and Clark, JJ.

__________

Shaun Thompson, Pine City, appellant pro se.

Eric T. Schneiderman, Attorney General, Albany (Allyson B.

Levine of counsel), for respondent.

__________

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

entered December 20, 2013 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 is currently serving an aggregate term of 15

years to life in prison upon his conviction of the crimes of

murder in the second degree and attempted murder in the second

degree. In February 2013, he made his second appearance before

respondent seeking to be released to parole supervision. 

Following a hearing, respondent denied his request and ordered

him held for an additional 24 months. Petitioner filed an

administrative appeal and, when it was not decided within four

months, he commenced this CPLR article 78 proceeding. Following
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service of respondent's answer, Supreme Court dismissed the

petition and this appeal by petitioner ensued. 

We affirm. As Supreme Court recognized, and contrary to

petitioner's argument, respondent considered the relevant

statutory factors in denying parole release (see Executive Law 

§§ 259-c [4]; 259-i [2] [c] [A]). During the interview,

respondent reviewed petitioner's disciplinary record, which has

been without incident since 2003, his program accomplishments,

including obtaining a GED, community support available through

his family, the available sentencing minutes from the attempted

murder conviction, and the COMPAS Risk and Needs Assessment

instrument. The Board also considered the fact that petitioner

was on parole supervision at the time that he committed the

offenses for which he stands incarcerated – each involving the

use of a handgun. Respondent was required to consider

petitioner's prior criminal history and the severity of these

convictions (see Matter of Williams v New York State Div. of

Parole, 114 AD3d 992, 992 [2014]). 

Moreover, in light of our recent decision in Matter of

Montane v Evans (116 AD3d 197 [2014], lv granted 23 NY3d 903

[2014]), we find no merit to petitioner's claim that respondent

failed to comply with recent amendments to Executive Law § 259-c

(4) by not establishing written procedures for evaluating parole

requests. Furthermore, we do not find that respondent's

imposition of a 24-month hold was excessive under the

circumstances presented (see Matter of Shark v New York State

Div. of Parole Chair, 110 AD3d 1134, 1135, lv dismissed 23 NY3d

933 [2014]). Accordingly, given that respondent's decision does

not exhibit "'irrationality bordering on impropriety'" (Matter of

Silmon v Travis, 95 NY2d 470, 476 [2000], quoting Matter of Russ

v New York State Bd. of Parole, 50 NY2d 69, 77 [1980]), we find

no reason to disturb it.

Peters, P.J., Lahtinen, Lynch, Devine and Clark, JJ.,

concur.
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ORDERED that the judgment is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court