IN RE: Clarence J. PEARL

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

IN RE: Clarence J. PEARL, Appellant, v. NEW YORK STATE DIVISION OF PAROLE, Respondent.

Decided: January 26, 2006

Before:  MERCURE, J.P., PETERS, SPAIN, CARPINELLO and ROSE, JJ. Clarence J. Pearl, Ogdensburg, appellant pro se. Eliot Spitzer, Attorney General, Albany (Edward Lindner of counsel), for respondent.

Appeal from a judgment of the Supreme Court (Cannizzaro, J.), entered July 15, 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 petitioner's request for parole release.

Petitioner is currently serving a prison sentence of 1 1/212 to 3 years for his 2002 conviction of attempted burglary in the third degree committed while he was on parole after serving four years on concurrent sentences of 3 1/212 to 7 years and 3 to 6 years for two convictions of burglary in the third degree.   In February 2004, petitioner appeared before the Board of Parole and his request for parole release was denied.   Following an unsuccessful administrative appeal, petitioner commenced this CPLR article 78 proceeding challenging the determination.   Supreme Court dismissed the petition and this appeal ensued.

 Contrary to petitioner's contention, the Board appropriately considered the relevant statutory factors, including the nature of the offense, receipt of an earned eligibility certificate, clean disciplinary record, plans upon release and his prior criminal history, in determining that petitioner's release would be incompatible with the safety and welfare of the community (see Executive Law § 259-i[1][a];  [2][c][A];  see also Matter of Rivera v. Travis, 289 A.D.2d 829, 830, 734 N.Y.S.2d 506 [2001];  Matter of Guerin v. New York State Div. of Parole, 276 A.D.2d 899, 900, 714 N.Y.S.2d 770 [2000] ).   Although petitioner received an earned eligibility certificate, this does not entitle petitioner to discretionary parole release (see Matter of Barad v. New York State Bd. of Parole, 275 A.D.2d 856, 713 N.Y.S.2d 775 [2000], lv. denied 96 N.Y.2d 702, 722 N.Y.S.2d 793, 745 N.E.2d 1015 [2001] ).   Moreover, the Board is not required to give equal weight to or specifically discuss every factor it considered in reaching its conclusion regarding parole release (see Matter of Larmon v. Travis, 14 A.D.3d 960, 787 N.Y.S.2d 918 [2005] ).   Inasmuch as the Board's determination does not evidence “ ‘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 find no reason to disturb it.

ORDERED that the judgment is affirmed, without costs.

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