IN RE: Johnny RIVERA

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

IN RE: Johnny RIVERA, Petitioner, v. STATE of New York EXECUTIVE DEPARTMENT BOARD OF PAROLE, Respondent.

Decided: January 27, 2000

Before:  MERCURE, J.P., CREW III, CARPINELLO, GRAFFEO and MUGGLIN, JJ. Johnny Rivera, Woodbourne, petitioner in person. Eliot Spitzer, Attorney-General (Mary Lynn Nicolas of counsel), New York City, for respondent.

Proceeding pursuant to CPLR article 78 (transferred to this court by order of the Supreme Court, entered in Sullivan County) to review a determination of respondent which denied petitioner's request for parole release.

 Petitioner, an inmate serving concurrent prison sentences of 7 to 21 years for manslaughter in the first degree and 5 to 15 years for manslaughter in the second degree for fatally shooting two people, one of them an 11-year-old girl, challenges a determination denying his request for parole release.   Initially, we note that because no issue of substantial evidence is present in this proceeding (see, CPLR 7803[4] ), Supreme Court improperly transferred the matter to this court for review (see, Matter of Almeyda v. New York State Div. of Parole, 251 A.D.2d 739, 740, 672 N.Y.S.2d 274;  Matter of Vasquez v. New York State Div. of Parole, 215 A.D.2d 856, 626 N.Y.S.2d 332).

 Nevertheless, upon considering the merits in the interest of judicial economy, we find evidence that respondent explored and considered the relevant statutory factors, placing emphasis on the seriousness of the offense and petitioner's lack of insight into his behavior.   Notably, respondent is not required to expressly discuss each of the statutory factors it considered in reaching its determination (see, Matter of Faison v. Travis, 260 A.D.2d 866, 688 N.Y.S.2d 782, appeal dismissed 93 N.Y.2d 1013, 697 N.Y.S.2d 567, 719 N.E.2d 928).   In any event, since petitioner failed to demonstrate that the determination was affected by irrationality bordering on impropriety, we find no reason to disturb respondent's discretionary determination that petitioner was not currently an acceptable candidate for parole release (see, id.).

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.

MEMORANDUM DECISION.

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