IN RE: Jon PABON

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

IN RE: Jon PABON, Appellant, v. NEW YORK STATE DIVISION OF PAROLE, Respondent.

Decided: February 23, 2006

Before:  CARDONA, P.J., MERCURE, SPAIN, MUGGLIN and KANE, JJ. Jon Pabon, Fallsburg, appellant pro se. Eliot Spitzer, Attorney General, Albany (Patrick Barnett-Mulligan of counsel), for respondent.

Appeal from a judgment of the Supreme Court (Bradley, J.), entered July 14, 2005 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of the Board of Parole denying his request for parole release.

Following his 1984 convictions of robbery in the first degree and murder in the second degree, petitioner was sentenced to concurrent prison terms of 8 to 25 years and 15 years to life.   On April 6, 2004, he made his fourth appearance before the Board of Parole for parole release.   At the conclusion of the hearing, the Board denied him release and ordered him held for an additional 24 months.   The determination was affirmed on administrative appeal.   Petitioner then commenced this CPLR article 78 proceeding challenging the determination and Supreme Court dismissed the petition.   This appeal ensued.1

We affirm.   The record reveals that the Board took into consideration the relevant statutory factors in denying petitioner's request for release, including not only the serious nature of his crimes, but also his prison disciplinary record, program accomplishments and post release plans (see Executive Law § 259-i[2][c][A];  Matter of Vasquez v. State of N.Y. Exec. Dept., Div. of Parole, 20 A.D.3d 668, 669, 797 N.Y.S.2d 655 [2005] ).   The Board was not required to give all factors equal weight (see Matter of Carter v. Dennison, 19 A.D.3d 974, 975, 797 N.Y.S.2d 193 [2005];  Matter of McCorkle v. New York State Div. of Parole, 19 A.D.3d 791, 791, 796 N.Y.S.2d 259 [2005] ).   Although petitioner asserts that respondent submitted inaccurate information which led Supreme Court to conclude that this was his second appearance before the Board when, in fact, it was his fourth, the record does not substantiate this claim or reveal that the Board considered the number of appearances in denying his request.   Inasmuch as petitioner has not demonstrated that the Board's decision evinces “ ‘irrationality bordering on impropriety’ ” (Matter of Silmon v. Travis, 95 N.Y.2d 470, 476, 718 N.Y.S.2d 704, 741 N.E.2d 501 [2000], quoting Matter of Russo v. New York State Bd. of Parole, 50 N.Y.2d 69, 77, 427 N.Y.S.2d 982, 405 N.E.2d 225 [1980] ), we decline to disturb it.   We have considered petitioner's remaining contentions and find them to be unavailing.

ORDERED that the judgment is affirmed, without costs.

FOOTNOTES

1.   Petitioner also made a motion for reconsideration of Supreme Court's decision, which was denied.

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