                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 2, 2014                   518574
________________________________

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

ANDREA EVANS, as Chair of
   the Division of Parole,
                    Respondent.
________________________________


Calendar Date:   August 4, 2014

Before:   Peters, P.J., Lahtinen, McCarthy, Lynch and Clark, JJ.

                             __________


     Carlos Delrosario, Woodbourne, appellant pro se.

      Eric T. Schneiderman, Attorney General, Albany (Owen Demuth
of counsel), for respondent.

                             __________


      Appeal from a judgment of the Supreme Court (LaBuda, J.),
entered January 31, 2014 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 was convicted of a multitude of crimes,
including burglary in the first degree, kidnapping in the second
degree and four counts of robbery in the first degree, as the
result of incidents that occurred in July 1990 and March 1991,
and he was sentenced to an aggregate prison term of 25 to 50
years (People v Del Rosario, 210 AD2d 72 [1994], lv denied 84
NY2d 1030 [1995]). In December 2012, he made his second
appearance before the Board of Parole seeking to be released to
parole supervision. Following a hearing, his request was denied
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and he was ordered held an additional 24 months. Petitioner
filed an administrative appeal and, when it was not decided
within four months, he commenced this CPLR article 78 proceeding.
Following joinder of issue, Supreme Court dismissed the petition
and this appeal ensued.

      Initially, we note that parole release decisions are
discretionary and will not be disturbed as long as the Board
complied with the statutory requirements of Executive Law § 259-i
(see Matter of Hamilton v New York State Div. of Parole, 119 AD3d
1268; Matter of Williams v New York State Div. of Parole, 114
AD3d 992, 992 [2014]; Matter of Shark v New York State Div. of
Parole, 110 AD3d 1134, 1134 [2013], lv dismissed 23 NY3d 933
[2014]). Contrary to petitioner's claim, in making its decision,
the Board did not just consider the serious nature of
petitioner's crimes, but also took into account other relevant
statutory factors, including his clean prison disciplinary
record, program accomplishments, postrelease plans, the available
sentencing minutes and the COMPAS Risk and Needs Assessment
instrument (see Matter of Partee v Evans, 117 AD3d 1258, 1259
[2014], lv denied ___ NY3d ___ [Sept. 4, 2014]; Matter of
Williams v New York State Div. of Parole, 114 AD3d at 992). The
Board cannot be faulted for not considering the sentencing
minutes pertaining to the crimes arising from the March 1991
incident given that it made diligent efforts to obtain them, but
they could not be located (see Matter of Smith v New York State
Div. of Parole, 81 AD3d 1026, 1026-1027 [2011]; Matter of
Williams v New York State Div. of Parole, 70 AD3d 1106, 1106, lv
denied 14 NY3d 709 [2010]). Moreover, the Board did not err in
considering information in the presentence investigation report
that petitioner fired a gun at police officers while attempting
to flee during the March 1991 incident inasmuch as petitioner did
not challenge the accuracy of this information (see Matter of
Wisniewski v Michalski, 114 AD3d 1188, 1190 [2014]; Matter of
Vigliotti v State of N.Y. Exec. Div. of Parole, 98 AD3d 789, 790
[2012], lv dismissed 20 NY3d 1034 [2013]). Petitioner's
contention that the Board failed to formally promulgate rules
governing parole release in accordance with recent amendments to
Executive Law § 259-c (4) is unpersuasive in light of our
decision in Matter of Montane v Evans (116 AD3d 197 [2014], lv
granted 23 NY3d 903 [2014]). Accordingly, given that the Board's
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decision does not evince "'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]), we will not disturb it.

      Peters, P.J., Lahtinen, McCarthy, Lynch and Clark, JJ.,
concur.



     ORDERED that the judgment is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
