In the Matter of Johnny Rivera, Petitioner, v. State of New York Executive Department Board of Parole, Respondent

In the Matter of Johnny Rivera, Petitioner, v State of New York Executive Department Board of Parole, Respondent. [702 NYS2d 447] [MAJORITY] —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 AD2d 739, 740; Matter of Vasquez v New York State Div. of Parole, 215 AD2d 856). 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 AD2d 866, appeal dismissed 93 NY2d 1013). 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.). Mercure, J. P., Crew III, Carpinello, Graffeo and Mugglin, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.