| Matter of Rivera v New York State Div. of Parole |
| 2012 NY Slip Op 04065 [95 AD3d 1586] |
| May 24, 2012 |
| Appellate Division, Third Department |
| 2—In the Matter of Richard Rivera, Appellant, v New YorkState Division of Parole, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Zainab A. Chaudhry of counsel), forrespondent.
Appeal from a judgment of the Supreme Court (Lawliss, J.), entered October 5, 2011 inClinton County, which dismissed petitioner's application, in a proceeding pursuant to CPLRarticle 78, to review a determination of the Board of Parole denying petitioner's request for parolerelease.
In 1982, petitioner received an aggregate prison sentence of 30 years to life after he wasconvicted of a number of crimes, including two counts of murder in the second degree, inconnection with a robbery at a bar that resulted in the fatal shooting of an off-duty police officer.In 2008, one of the two counts of murder in the second degree was removed from his institutionalrecord and later dismissed as the result of a successful federal habeas corpus petition thatchallenged his state conviction on various grounds. In September 2010, petitioner made his firstappearance before the Board of Parole which denied his request and ordered him held for anadditional 24 months. After an unsuccessful administrative appeal, petitioner commenced thisCPLR article 78 proceeding challenging the Board's decision, and he now appeals from SupremeCourt's dismissal of his petition.
We reject petitioner's contention that the Board relied on erroneous information relating tohis dismissed conviction for second degree murder in denying his request for parole release.From our review of the record, it is clear that, in denying petitioner's request for parole, the Board[*2]considered petitioner's admission during his parole interviewthat he shot and killed the off-duty officer together with the appropriate statutory factors,including not only the serious nature of his crimes, but also his criminal history, poor prisondisciplinary record, positive program accomplishments and postrelease plans (see Matter of Ruiz v New York State Div.of Parole, 70 AD3d 1162, 1163 [2010]; Matter of Brower v Alexander, 57 AD3d 1060, 1060 [2008], lvdenied 12 NY3d 707 [2009]). The Board's decision does not exhibit " 'irrationality borderingon impropriety' " (Matter of Silmon v Travis, 95 NY2d 470, 476 [2000], quotingMatter of Russo v New York State Bd. of Parole, 50 NY2d 69, 77 [1980]), and we findno reason to disturb it.
Lahtinen, J.P., Spain, Malone Jr., Garry and Egan Jr., JJ., concur. Ordered that the judgmentis affirmed, without costs.