IN RE: Frank WILEY (1997)

Appeal from a judgment of the Supreme Court (Cobb, J.), entered January 8, 1997 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of the State Board of Parole denying petitioner parole release.

Petitioner is an inmate serving a prison term of 25 years to life following his 1972 conviction of murder in the first degree.   In October 1995, petitioner's request for parole was denied, and he thereafter commenced this proceeding to challenge that decision.   Supreme Court dismissed the petition and this appeal ensued.

 We affirm.   Petitioner's challenge to the denial of parole upon the ground that the State Board of Parole erroneously applied the current parole criteria under Executive Law § 259-i, rather than the criteria found under the former statutes that were in effect at the time of his conviction, is without merit (see, People ex rel. Gilmore v. New York State Parole Bd., 241 A.D.2d 793, 793-794, 661 N.Y.S.2d 78, 79).   In any event, the Board's denial of parole was based upon the serious nature of the crime of which petitioner stood convicted (i.e., he shot and killed the owner of a grocery store during an attempted robbery) and his past criminal history, factors that are sufficient to deny parole even under the former statute (see, Matter of Ristau v. Hammock, 103 A.D.2d 944, 479 N.Y.S.2d 760, lv. denied 63 N.Y.2d 608, 483 N.Y.S.2d 1023, 472 N.E.2d 1043).   Because the Board confined its decision to the factors set forth in Executive Law § 259-i and absent a showing that such decision was irrational, Supreme Court properly dismissed petitioner's application.

ORDERED that the judgment is affirmed, without costs.

MEMORANDUM DECISION.