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Supreme Court, Appellate Division, First Department, New York.

IN RE: Frank GUZMAN, Petitioner-Appellant, v. Robert DENNISON, Chairman, New York State Division of Parole, Respondent-Respondent.

Decided: September 28, 2006

MAZZARELLI, J.P., ANDRIAS, SULLIVAN, NARDELLI, McGUIRE, JJ. Frank Guzman, appellant pro se. Eliot Spitzer, Attorney General, New York (Thomas B. Litsky of counsel), for respondent.

Judgment, Supreme Court, New York County (Marilyn Shafer, J.), entered December 30, 2005, which denied petitioner's application to annul respondent's denial of parole and dismissed the petition, unanimously affirmed, without costs.

While petitioner's prison record is commendable, respondent's denial of parole based on the serious and violent nature of his offense is not arbitrary and capricious (see Matter of Silmon v. Travis, 95 N.Y.2d 470, 476-477, 718 N.Y.S.2d 704, 741 N.E.2d 501 [2000];  People ex rel. Herbert v. New York State Bd. of Parole, 97 A.D.2d 128, 133, 468 N.Y.S.2d 881 [1983] ).   Respondent did find “some aggravating circumstances beyond the inherent seriousness of the crime itself” (Matter of King v. New York State Div. of Parole, 190 A.D.2d 423, 433, 598 N.Y.S.2d 245 [1993], affd. 83 N.Y.2d 788, 610 N.Y.S.2d 954, 632 N.E.2d 1277 [1994] ), e.g., that petitioner was on parole when he committed the crime.