Gardiner v. New York State Div. of Parole, 48 A.D.3d 871 (N.Y. App. Div. 2008). · Go Syfert
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Gardiner v. New York State Div. of Parole, 48 A.D.3d 871 (N.Y. App. Div. 2008). Cases Citing This Book View Copy Cite
11 citation events (11 in the last 25 years) across 1 distinct court.
Strongest positive: Matter of Mills v. New York State Bd. of Parole (nyappdiv, 2024-02-08)
Top citers, strongest first. 11 distinct citers. How cited ↗
discussed Cited as authority (rule) Matter of Mills v. New York State Bd. of Parole
N.Y. App. Div. · 2024 · confidence medium
Moreover, the Board's decision does not reflect that the dismissed SCI played any part in its denial of parole, which was based upon the charges for which he was convicted following trial and the relevant statutory factors ( see Matter of Gardiner v New York State Div. of Parole , 48 AD3d 871, 872 [3d Dept 2008]). [FN6] Likewise, the record belies petitioner's claim that the Board improperly consider his dismissed marihuana-related conviction, as the Board made no reference to that conviction in its decision, the Board's report made no mention of it and it was redacted from the 2004 sentencing…
discussed Cited as authority (rule) Amen v. New York State Division of Parole
N.Y. App. Div. · 2012 · confidence medium
Despite petitioner’s arguments, we are not persuaded that the Board improperly considered an arrest that did not result in prosecution (see Matter of Gardiner v New York State Div. of Parole, 48 AD3d 871, 872 [2008]), or that the Board was not permitted to take a youthful offender adjudication into consideration (see Matter of Martin v New York State Div. of Parole, 47 AD3d at 1152 ).
discussed Cited as authority (rule) Amen v. New York State Division of Parole
N.Y. App. Div. · 2012 · confidence medium
Despite petitioner’s arguments, we are not persuaded that the Board improperly considered an arrest that did not result in prosecution (see Matter of Gardiner v New York State Div. of Parole, 48 AD3d 871, 872 [2008]), or that the Board was not permitted to take a youthful offender adjudication into consideration (see Matter of Martin v New York State Div. of Parole, 47 AD3d at 1152 ).
discussed Cited as authority (rule) Rodriguez v. Alexander
N.Y. App. Div. · 2010 · confidence medium
The Board was not required to give equal weight to each factor and could, as it did, assign greater emphasis to the serious nature of petitioner’s crimes (see Matter of MacKenzie v Dennison, 55 AD3d 1092, 1092-1093 [2008]; Matter of Gardiner v New York State Div. of Parole, 48 AD3d 871, 872 [2008]).
discussed Cited as authority (rule) Comfort v. New York State Division of Parole
N.Y. App. Div. · 2009 · confidence medium
However, unlike many other cases in which the Board has relied primarily on the seriousness of an offender’s crimes in denying parole, petitioner’s crimes were neither violent nor accompanied by a history of other serious or violent crimes (cf. Matter of MacKenzie v Dennison, 55 AD3d 1092, 1092 [2008] [crimes related to the fatal shooting of a police officer]; Matter of Motti v Alexander, 54 AD3d 1114, 1115 [2008] [two counts of murder in the second degree]; Matter of Montalvo v New York State Bd. of Parole, 50 AD3d 1438, 1438-1439 [2008] [manslaughter in the first degree and reckless enda…
discussed Cited as authority (rule) Porter v. Alexander
N.Y. App. Div. · 2009 · confidence medium
Moreover, the Board was not required to weigh each factor equally or articulate the weight accorded to each factor (see Matter of Gardiner v New York State Div. of Parole, 48 AD3d 871, 872 [2008]; Matter of Rivera v Dennison, 25 AD3d 856, 857 [2006]).
discussed Cited as authority (rule) MacKenzie v. Dennison
N.Y. App. Div. · 2008 · confidence medium
The Board was not required to give each factor equal weight and could, as it did, place primary emphasis on the serious nature of petitioner’s crimes (see Matter of Gardiner v New York State Div. of Parole, 48 AD3d 871, 872 [2008]; Matter of McCorkle v New York State Div. of Parole, 19 AD3d 791, 791-792 [2005]).
discussed Cited as authority (rule) Motti v. Alexander
N.Y. App. Div. · 2008 · confidence medium
Moreover, despite petitioner’s contention to the contrary, the Board may place a greater emphasis on the seriousness of his crimes than on the other statutory factors, as it was not required to weigh each factor equally or articulate the weight accorded to each factor (see Matter of Gardiner v New York State Div. of Parole, 48 AD3d 871, 872 [2008]; Matter of Rivera v Dennison, 25 AD3d 856, 857 [2006]).
discussed Cited as authority (rule) Marcus v. Alexander
N.Y. App. Div. · 2008 · confidence medium
The Board was not required to give each factor equal weight and was free to place greater emphasis on the heinous nature of this murder for hire which petitioner committed by shooting the victim at point-blank range in the back of the head (see Matter of Gardiner v New York State Div. of Parole, 48 AD3d 871, 872 [2008]).
discussed Cited as authority (rule) Garofolo v. Dennison
N.Y. App. Div. · 2008 · confidence medium
Furthermore, inasmuch as the Board appeared to have placed greater weight on the violence and brutality of defendant’s conduct than on the other statutory factors, we note that it was not required to weigh each factor equally, nor was it required to explicitly articulate the weight it accorded to each factor (see Matter of Gardiner v New York State Div. of Parole, 48 AD3d 871, 872 [2008]; Matter of Serrano v Dennison, 46 AD3d 1002, 1003 [2007]; Matter of Wilcher v Dennison, 30 AD3d at 959 ; Matter of Tatta v Dennison, 26 AD3d 663, 663 [2006], lv denied 6 NY3d 714 [2006]; Matter of Lue-Shing …
discussed Cited as authority (rule) Alamo v. New York State Division of Parole
N.Y. App. Div. · 2008 · confidence medium
The Board was not required to give equal weight to each factor and was entitled to, as it did, place greater emphasis on the gravity of the instant offense (see Matter of Gardiner v New York State Div. of Parole, 48 AD3d 871, 872 [2008]).
Retrieving the full opinion text from the archive…
In the Matter of James Gardiner
v.
New York State Division of Parole
Appellate Division of the Supreme Court of the State of New York.
Feb 14, 2008.
48 A.D.3d 871
Cited by 11 opinions  |  Published

Appeal from a judgment of the Supreme Court (Pritzker, J.), entered June 11, 2007 in Washington County, which dismissed petitioner’s application, in a proceeding pursuant to CPLR article 78, to review a determination of the Board of Parole denying petitioner’s request for parole release.

Following his 1985 conviction of robbery in the first degree and attempted robbery in the first degree, petitioner was sentenced to concurrent terms of 71/2 to 15 years in prison. While incarcerated, he stabbed another inmate to death and was subsequently convicted of manslaughter in the first degree. He was sentenced to 10 to 20 years in prison on this charge, which sentence was to run consecutive to the sentence he was then serving. In June 2006, petitioner made his third appearance before the Board of Parole for parole release. At the conclusion of the hearing, the Board denied his request and ordered him held for an additional 24 months. Petitioner took an administrative appeal and commenced this CPLR article 78 proceeding when a determination was not rendered within four months. Following joinder of issue, Supreme Court dismissed the petition and this appeal ensued.

[*872] We affirm. Contrary to petitioner’s claim, the record does not reveal that the Board based its decision solely upon the serious nature of his crimes. The Board also considered other statutory factors set forth in Executive Law § 259-i, including petitioner’s prior conviction for robbery in the second degree, prior parole violations, his prison disciplinary record, his program accomplishments and his postrelease plans (see Matter of Mojica v Travis, 34 AD3d 1155,1156 [2006]). The Board was not required to give each factor equal weight and could, as it did, choose to place greater emphasis on the seriousness of petitioner’s crimes (see Matter of Motti v Dennison, 38 AD3d 1030, 1031 [2007]). Although the record improperly includes arrest information on sealed criminal matters, the Board did not rely on this information and we deem it harmless (see Matter of Grune v Board of Parole, 41 AD3d 1014, 1015 [2007]). Petitioner’s remaining contentions are unavailing. Insofar as the Board’s decision does not exhibit “ ‘irrationality bordering on impropriety’ ” (Matter of Silmon v Travis, 95 NY2d 470, 476 [2000], quoting Matter of Russo v New York State Bd. of Parole, 50 NY2d 69, 77 [1980]), we find no reason to disturb it.

Cardona, PJ., Carpinello, Lahtinen, Kane and Kavanagh, JJ., concur. Ordered that the judgment is affirmed, without costs.