PRESENT: HONORABLE MARK H. DADD

Acting Supreme Court Justice

STATE OF NEW YORK

SUPREME COURT : COUNTY OF WYOMING

________________________________________

In the Matter of the Application of

RAHMAN ALBRITTON, #96-R-1686,

Petitioner

v.

Index No. 19,048

BRION D. TRAVIS, Chairman, New York

State Division of Parole, Respondent

FOR RELIEF PURSUANT TO ARTICLE 78 CPLR

_________________________________________

For the Petitioner

WYOMING COUNTY-ATTICA LEGAL

AID BUREAU, INC.

Norman P. Effman, Director

14 Main Street

Attica, New York 14011

For the Respondent

ELIOT SPITZER, Attorney General

by Michael J. Russo

Assistant Attorney General

Statler Towers, Fourth Floor

107 Delaware Avenue

Buffalo, New York 14202



MEMORANDUM AND JUDGMENT

By petition pursuant to Article 78 of the CPLR, Rahman Albritton seeks review of a parole release hearing conducted on September 8, 1999. Petitioner appeared with counsel assigned by an order to show cause dated June 5, 2000 and contended that he should be granted a de&nbspnovo hearing. Respondent requests that the petition be denied upon the answer dated July 24, 2000 and the record of confidential information submitted to the Court.

The petition is without merit. The Board of Parole could cite the petitioner's criminal history, his attitude toward his criminal conduct, and a serious disciplinary infraction in prison as sufficient grounds for denying release pursuant to Correction Law §805 (see Matter of Walker v. Russi, 176 A.D.2d 1185 [1991], appeal dismissed 79 N.Y.2d 897; Matter of Salcedo v. Ross, 183 A.D.2d 771 [1992]; Matter of Lippa v. New York State Division of Parole, 202 A.D.2d 928 [1994]; People ex rel Justice v. Russi, 226 A.D.2d 821 [1996]; Matter of Flecha v. Russi, 221 A.D.2d 780 [1995], motion for leave to appeal denied 87 N.Y.2d 806). The commissioners also had discretion to place greater weight on these factors than they placed upon his performance in institutional programs (see Matter of Ristau v. Hammock, 103 A.D.2d 944 [1984], motion for leave to appeal denied 63 N.Y.2d 608; Matter of Rentz v. Herbert, 206 A.D.2d 944 [1994], motion for leave to appeal denied 84 N.Y.2d 810). The record further shows that they were aware the defendant had pleaded guilty to Attempted Robbery in the First Degree and that his codefendant fired the shot which caused the death of the intended robbery victim. Petitioner has failed to show that their decision was based upon an inaccurate account of his criminal conduct (see People ex rel Thomas v. Superintendent of Arthur Kill Correctional Facility, 124 A.D.2d 848 [1986], leave denied 69 N.Y.2d 611; Matter of Hall v. New York State Executive Department, Division of Parole, 188 A.D.2d 791 [1992]; Matter of Maciag v. Hammock, 88 A.D.2d 1106 [1982]; Matter of Qafa v. Hammock, 80 A.D.2d 952 [1981]; Matter of Vuksanaj v. Hammock, 93 A.D.2d 958 [1983]; Matter of Lynch v. New York State Division of Parole, 82 A.D.2d 1012 [1981]). Thus, judicial intervention is precluded in this matter because the petitioner has failed to establish that the respondent's decision was made in violation of the law or not supported by the record and tainted by "irrationality bordering on impropriety" (see Matter of Russo v. New York State Division of Parole, 50 N.Y.2d 69, 77 [1980]; Matter of Despard v. Russi, 192 A.D.2d 1076 [1993], motion for leave to appeal denied 82 N.Y.2d 652).

Petitioner is not entitled to relief merely because the decision may have imposed a disposition which exceeded the recommended term of imprisonment under the applicable guideline range (see Matter of Abrams v. New York State Board of Parole, 88 A.D.2d 951 [1982]). The record is not clear as to the proper application of the guidelines in this matter (see Exhibits A-1, B, p. 10, and C-1). In any event, upon review of the entire record, the Court further finds that the petitioner is not entitled to relief upon his claim that this disposition was "excessive" (see Matter of Pell v. Board of Education, 34 N.Y.2d 222, 233 [1974]; Matter of Madlock v. Russi, 195 A.D.2d 646 [1993]).

NOW, THEREFORE, it is hereby

ORDERED that the petition is denied.

DATED: August 31, 2000

Warsaw, New York



Acting Supreme Court Justice



Memorandum and Judgment

Index No.19,048