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

IN RE: Pierre FRANSUA, Appellant, v. George ALEXANDER, as Chair of the Division of Parole, Respondent.

Decided: June 26, 2008

Before:  CARDONA, P.J., SPAIN, CARPINELLO, KANE and MALONE JR., JJ. Pierre Fransua, Marcy, appellant pro se. Andrew M. Cuomo, Attorney General, Albany (Peter H. Schiff of counsel), for respondent.

Appeal from a judgment of the Supreme Court (Stein, J.), entered November 8, 2007 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 petitioner's request for parole release.

While on parole for a prior conviction for robbery in the first degree, defendant dragged a woman to a wooded area where he raped and sodomized her.   As a result, he was convicted of rape in the first degree and sodomy in the first degree and was sentenced to concurrent prison terms of 15 years to life.   In October 2006, petitioner made his fifth appearance before the Board of Parole.   The Board denied his request for parole release and ordered him held for an additional 24 months.   Petitioner filed an administrative appeal and then commenced this CPLR article 78 proceeding.   Following joinder of issue, Supreme Court dismissed the petition.   Petitioner now appeals.

We affirm.   Our review of the record establishes that, in denying petitioner's parole release request, the Board took into account the relevant statutory factors (see Executive Law § 259-i[2][c][A] ), including the gravity of the present crimes, petitioner's extensive criminal history and his institutional record and postrelease plans (see Matter of Villar v. Alexander, 51 A.D.3d 1125, 856 N.Y.S.2d 724, 725 [2008] ).   Contrary to petitioner's assertion, there is no indication that the Board's reference to oral sodomy, which was mentioned in the presentence investigation report but for which petitioner was not convicted, served as the sole basis for the Board's determination (see Matter of Williams v. Travis, 11 A.D.3d 788, 790, 783 N.Y.S.2d 413 [2004], lv. dismissed 4 N.Y.3d 813, 796 N.Y.S.2d 34, 828 N.E.2d 993 [2005] ).   Given the foregoing, we find that the Board's decision does not exhibit “ ‘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] ).

ORDERED that the judgment is affirmed, without costs.

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