IN RE: Daniel BARAD (2000)

Appeal from a judgment of the Supreme Court (Keegan, J.), entered February 3, 2000 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent Board of Parole denying petitioner's request for parole release.

Petitioner is currently serving a prison sentence of 4 to 12 years for his conviction of criminal use of a child in a sexual performance.   Petitioner appeared before respondent Board of Parole on November 3, 1998 and was subsequently denied parole.   The Board found, inter alia, that there was a reasonable probability that petitioner would not remain at liberty without violating the law if released and that his release would be incompatible with the welfare and safety of the community.   Following an appeal to the Board's Appeals Unit, the denial of parole was affirmed.   Petitioner then commenced this CPLR article 78 proceeding challenging the determination.   Supreme Court dismissed the petition and this appeal ensued.

 We affirm.   The record discloses that the Board considered all relevant factors, including, inter alia, petitioner's receipt of an earned eligibility certificate, his future plans, the gravity of the instant conviction, petitioner's Federal conviction and his guilty plea.   In view of the foregoing, it cannot be said that the Board's determination was either irrational or arbitrary and capricious (see, Executive Law § 259-i[5];  Matter of Fitzpatrick v. Travis, 274 A.D.2d 718, 711 N.Y.S.2d 795).   Furthermore, the fact that petitioner received an earned eligibility certificate does not preclude the Board from denying parole release or concluding that petitioner's release would be incompatible with the welfare of society (see, Matter of Howard v. New York State Bd. of Parole, 270 A.D.2d 539, 539-540, 704 N.Y.S.2d 326).   Accordingly, we find no reason to disturb the Board's discretionary decision.   Petitioner's remaining contentions have been reviewed and found to be without merit.

ORDERED that the judgment is affirmed, without costs.

MEMORANDUM DECISION.