Opinion
November 15, 1989
Appeal from the Supreme Court, Wyoming County, Dadd, J.
Present — Denman, J.P., Green, Pine, Balio and Lawton, JJ.
Determination unanimously annulled and petition granted. Memorandum: The Division of Parole must prove, by a preponderance of the evidence, that a parolee has violated the terms of his parole (see, Executive Law § 259-i [f] [viii]; 9 NYCRR 8005.20; People ex rel. Matthews v New York State Div. of Parole, 58 N.Y.2d 196, 202). This burden is not satisfied unless there is a residuum of legal evidence to support a finding of guilt (People ex rel. Manton v Von Holden, 86 A.D.2d 967, 968, lv denied 56 N.Y.2d 505). Hearsay alone will not suffice (People ex rel. Manton v Von Holden, supra; see also, People v Krzykowski, 121 A.D.2d 831, 832; People v Todd D., 100 A.D.2d 595). In the subject case, the only evidence probative of the claimed violation of parole consisted of hearsay; thus the Division failed to sustain its burden of proof.