Opinion
525787
10-11-2018
In the Matter of Falon B. DAVIS, Petitioner, v. Darwin LACLAIR, as Superintendent of Franklin Correctional Facility, Respondent.
Falon B. Davis, Malone, petitioner pro se. Barbara D. Underwood, Attorney General, Albany (Kate H. Nepveu of counsel), for respondent.
Falon B. Davis, Malone, petitioner pro se.
Barbara D. Underwood, Attorney General, Albany (Kate H. Nepveu of counsel), for respondent.
MEMORANDUM AND JUDGMENT
Pritzker, J. Proceeding pursuant to CPLR article 78 (converted from an application pursuant to CPLR article 70 and then transferred to this Court by order of the Supreme Court, entered in Franklin County) to review a determination of the Board of Parole revoking petitioner's parole.
In June 1991, petitioner was sentenced to an aggregate prison term of 15 to 30 years stemming from various robbery convictions. In April 2016, petitioner was released, for the third time, to parole supervision and, shortly thereafter, was charged with violating multiple conditions of parole, including engaging in general violations of the law, failing to abide by the parole officer's instructions and failing to comply with an order of protection. Following a final revocation hearing, an Administrative Law Judge (hereinafter ALJ) sustained the charges, revoked petitioner's parole and imposed a 30–month time assessment, which is the maximum expiration of his aggregate prison term. That determination was affirmed upon administrative appeal.
Petitioner then commenced this proceeding for a writ of habeas corpus, seeking immediate release from custody on the ground that, among other things, the charges were not sufficiently sustained. Supreme Court, finding that habeas corpus relief was not available under the circumstances, treated the matter as a proceeding pursuant to CPRL article 78 and, given that an issue of substantial evidence was raised, transferred the proceeding to this Court.
Initially, we find without merit petitioner's assertion that the transcript was altered, incomplete or insufficient to permit meaningful review (see Matter of Shearer v. Annucci, 155 A.D.3d 1277, 1278, 65 N.Y.S.3d 249 [2017] ; Matter of Graham v. New York State Div. of Parole, 269 A.D.2d 628, 629, 702 N.Y.S.2d 708 [2000], lv denied 95 N.Y.2d 753, 711 N.Y.S.2d 155, 733 N.E.2d 227 [2000] ). Turning to the merits, "[i]t is well established that a parole revocation decision will be upheld so long as the procedural requirements were followed and there is evidence which, if credited, would support such determination" ( Matter of Brunson v. New York State Dept. of Corr. & Community Supervision, 153 A.D.3d 1077, 1077–1078, 60 N.Y.S.3d 577 [2017] [internal quotation marks and citations omitted] ). The alleged parole violation must be supported by a preponderance of the evidence in order to warrant revocation (see Executive Law § 259–i[3][f] [viii] ; Matter of Brunson v. New York State Dept. of Corr. & Community Supervision, 153 A.D.3d at 1078, 60 N.Y.S.3d 577 ). Here, many of the theories set forth by petitioner in seeking to annul the revocation of his parole are unpreserved for our review as they were not raised at the final revocation hearing (see People ex rel. Wright v. Demars, 153 A.D.3d 1466, 1467–1468, 62 N.Y.S.3d 549 [2017] ; People ex rel. Webster v. Travis, 277 A.D.2d 546, 546, 716 N.Y.S.2d 618 [2000] ). Even if the issues were preserved, we would find petitioner's contentions without merit. The detailed testimony and documentation presented at the hearing, including the progress report, arrest records and terms of the order of protection, provide substantial evidence to support the determination that petitioner violated numerous conditions of his release (see Matter of Gainey v. Stanford, 157 A.D.3d 1176, 1177, 70 N.Y.S.3d 589 [2018] ; Matter of Fincher v. Executive Bd., N.Y. State Div. of Parole, 151 A.D.3d 1493, 1494, 57 N.Y.S.3d 724 [2017] ). To the extent that petitioner disagrees with the witnesses' versions of events upon which the charges were based, "it is within the province of the Board to resolve issues of credibility, and to determine the relative weight to be assigned to the evidence" ( Matter of Mack v. Alexander, 61 A.D.3d 1222, 1223, 877 N.Y.S.2d 507 [2009] [internal quotation marks and citation omitted] ). Further, any challenges with regard to the preliminary parole revocation hearing were rendered moot by the final parole revocation determination (see People ex rel. Wright v. Demars, 153 A.D.3d at 1467, 62 N.Y.S.3d 549 ; Matter of Nieblas v. New York State Bd. of Parole, 28 A.D.3d 1017, 1017, 813 N.Y.S.2d 271 [2006] ).
Turning to petitioner's procedural challenges, we are unpersuaded by petitioner's contention that the ALJ improperly denied his belated request — made after the hearing commenced — to proceed pro se. We also find without merit petitioner's contention that his time assessment cannot exceed 15 months. Petitioner, as a category 1 violator, was subject to a minimum time assessment of 15 months, unless the maximum expiration of the prison sentence was less (see 9 NYCRR 8005.20 [c][1] ). No other "limitation is imposed on the ... Board by [ Executive Law § 259–i(3)(f)(x)(C) ]" ( People ex rel. Matthews v. New York State Div. of Parole, 58 N.Y.2d 196, 205, 460 N.Y.S.2d 746, 447 N.E.2d 689 [1983] ; see People ex rel. Timmers v. Mellas, 27 A.D.3d 1179, 1179–1180, 811 N.Y.S.2d 848 [2006], lv denied 7 N.Y.3d 702, 818 N.Y.S.2d 192, 850 N.E.2d 1167 [2006] ). We have considered petitioner's remaining contentions — including that he did not receive the effective assistance of counsel and that the ALJ was biased — and find that they have either not been preserved for our review or are lacking in merit. Accordingly, we find no reason to disturb the determination revoking petitioner's parole.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
Egan Jr., J.P., Clark, Mulvey and Aarons, JJ., concur.