                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: June 23, 2016                     522100
________________________________

In the Matter of CARLOS
   DELROSARIO,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

TINA M. STANFORD, as Chair of
   the Board of Parole,
                    Respondent.
________________________________


Calendar Date:   May 3, 2016

Before:   Garry, J.P., Egan Jr., Rose, Mulvey and Aarons, JJ.

                               __________


     Carlos Delrosario, Otisville, appellant pro se.

      Eric T. Schneiderman, Attorney General, Albany (Laura
Etlinger of counsel), for respondent.

                               __________


      Appeal from a judgment of the Supreme Court (LaBuda, J.),
entered November 28, 2015 in Sullivan 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 serving an aggregate prison term of 20 to 40
years following his 1990 and 1991 convictions of multiple crimes,
including burglary in the first degree, kidnapping in the second
degree and four counts of robbery in the first degree. In
November 2014, petitioner reappeared before the Board of Parole.
Following a hearing, his request for parole release was denied
and he was ordered held an additional 24 months. When the
Board's Appeals Unit did not rule on petitioner's administrative
appeal within four months, petitioner commenced this CPLR article
                               -2-                522100

78 proceeding.   Supreme Court dismissed the petition and this
appeal ensued.

      We affirm. The record reflects that the Board considered
the relevant statutory factors in denying petitioner's request
for parole release, including the serious nature of his crime and
plans upon release, his institutional achievements, positive
disciplinary record, and the COMPAS Risk and Needs Assessment
instrument. Petitioner is subject to a final order of
deportation; it appears from the record that the Board was fully
aware of his deportation status, and we are unpersuaded by
petitioner's contention that the Board's question regarding his
reentry plans in the event that he is not deported negates its
knowledge of that order. The existence of the deportation order
does not require that parole be granted, but is a factor for the
Board to consider (see Executive Law § 259-i [2] [c] [A] [iv];
Matter of Kelly v Hagler, 94 AD3d 1301, 1302 [2012]).

      Petitioner challenges the accuracy of the information in
the presentence report regarding petitioner firing a gun at
police while attempting to flee during the March 1991 incident,
an issue addressed by this Court upon his prior challenge to
denial of parole release (Matter of Delrosario v Evans, 121 AD3d
1152, 1153 [2014]). However, "that challenge is . . . not
properly before us inasmuch as it should have been raised before
the sentencing court, prior to sentencing" (Matter of Wisniewski
v Michalski, 114 AD3d 1188, 1189 [2014] [internal quotation marks
and citations omitted]; see Matter of Vigliotti v State of N.Y.
Exec. Div. of Parole, 98 AD3d 789, 790 [2012], lv dismissed 20
NY3d 1034 [2013]). Further, we find unpreserved petitioner's
contention that the Board's recently promulgated regulations
governing parole release procedures (see 9 NYCRR 8002.3) do not
comply with the 2011 statutory amendments to the Executive Law
due to his failure to raise the issue in his administrative
appeal (see Matter of Tafari v Evans, 102 AD3d 1053, 1054 [2013],
lv denied 21 NY3d 852 [2013]). As the record does not reveal
that the Board's decision is effected by "'irrationality
bordering on impropriety'" (Matter of Silmon v Travis, 95 NY2d
470, 476 [2000], quoting Matter of Russo v New York State Bd. of
Parole, 50 NY2d 69, 77 [1980]), it will not be disturbed.
                              -3-                  522100

      Garry, J.P., Egan Jr., Rose, Mulvey and Aarons, JJ.,
concur.



     ORDERED that the judgment is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
