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

CLARENCE MASON, #96-B-2515,

Petitioner

v.

Index No. 19,050

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 Ann C. Williams

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 verified on May 23, 2000, Clarence Mason seeks review of a parole release hearing conducted on September 7, 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 novo hearing. Respondent requests that the petition be denied upon the answer dated July 11, 2000 and the record of confidential information submitted to the Court.

The petition is without merit. The Board of Parole could cite the serious conduct underlying the petitioner's two convictions for criminal possession of a controlled substance and his poor institutional record as sufficient grounds for denying release (see Matter of Lippa v. New York State Division of Parole, 202 A.D.2d 928 [1994]; Matter of Fuchino v. Herbert, 255 A.D.2d 914 [1998]; Matter of Putland v. Herbert, 231 A.D.2d 893 [1996], motion for leave to appeal denied 89 N.Y.2d 806; People ex rel Justice v. Russi, 226 A.D.2d 821 [1996]; Matter of Scott v. Russi, 208 A.D.2d 931 [1994]; Matter of Fortune v. Russi, Supreme Court of Wyoming County, Index No. 17,207, Memorandum and Judgment dated July&nbsp22, 1994, annexed, affirmed 219 A.D.2d 869 [1995]). The commissioners also had discretion to place greater weight on these factors than they placed upon his participation in certain prison programs and proposed release plans (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). Furthermore, their decision did not have to specifically mention every factor weighed in reaching a determination (see Matter of Mackall v. New York State Board of Parole, 91 A.D.2d 1023 [1983], motion for leave to appeal denied 58 N.Y.2d 609; Matter of Davis v. New York State Division of Parole, 114 A.D.2d 412 [1985]). Petitioner has not demonstrated that the commissioners failed to give fair consideration to all of the relevant factors pursuant to Executive Law §259-i(2)(c) (see Matter of Zane v. Travis, 231 A.D.2d 848 [1996]; People ex rel Thomas v. Superintendent of Arthur Kill Correctional Facility, 124 A.D.2d 848 [1986], leave denied 69 N.Y.2d 611). 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).

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 1, 2000

Warsaw, New York



Acting Supreme Court Justice



Memorandum and Judgment

Index No.19,050