Opinion
2012-01-5
In the Matter of Charles MURCHISON, Appellant, v. NEW YORK STATE DIVISION OF PAROLE, Respondent.
Charles Murchison, Beacon, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Marlene O. Tuczinski of counsel), for respondent.
Charles Murchison, Beacon, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Marlene O. Tuczinski of counsel), for respondent.
Before: PETERS, J.P., ROSE, MALONE JR., McCARTHY and EGAN JR., JJ.
Appeal from a judgment of the Supreme Court (McGrath, J.), entered March 18, 2011 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of the Board of Parole imposing a time assessment following the revocation of petitioner's parole.
In 1989, petitioner was convicted of multiple crimes and he was sentenced to a lengthy period of incarceration. He was subsequently released to parole supervision, but was charged with violating its terms. At the parole revocation hearing, petitioner pleaded guilty to the charge of bringing persons to the parole office without permission inasmuch as he had his girlfriend and her two young children accompany him to an appointment. Respondent, in turn, agreed to recommend a time assessment of 12 months. The Board of Parole, however, declined to adhere to this recommendation and imposed a time assessment equivalent to petitioner's maximum expiration date. Petitioner commenced this CPLR article 78 proceeding challenging the time assessment as excessive. Following joinder of issue, Supreme Court dismissed the petition and this appeal ensued.
Petitioner's challenge to the timeliness of the service of respondent's answer has been waived by his acceptance of the answer without objection ( see Matter of Ligotti v. Wilson, 287 A.D.2d 550, 551, 731 N.Y.S.2d 473 [2001] ).
“[T]he Executive Law does not place an outer limit on the length of [the time] assessment, and the Board's determination may not be modified upon judicial review ‘in the absence of impropriety’ ” ( Matter of Bell v. Lemons, 78 A.D.3d 1393, 1393–1394, 910 N.Y.S.2d 701 [2010], quoting People ex rel. Grimmick v. McGreevy, 141 A.D.2d 989, 990, 531 N.Y.S.2d 39 [1988], lv. denied 73 N.Y.2d 702, 536 N.Y.S.2d 743, 533 N.E.2d 673 [1988] ). Under the circumstances presented here, we cannot conclude that the Board engaged in impropriety. Petitioner's criminal record reveals that he committed brutal sexual assaults against two young women, ages 13 and 17, using force. Moreover, he was prohibited from having contact with persons under 18 years of age as a condition of his parole, but admittedly did so by being in the presence of his girlfriend's two minor children who he brought along with his girlfriend to the parole office without authorization. In view of the foregoing, we do not find that the time assessment was excessive ( see Matter of Davis v. New York State Bd. of Parole, 81 A.D.3d 1020, 1021, 915 N.Y.S.2d 771 [2011] ).
ORDERED that the judgment is affirmed, without costs.