Opinion
10 KAH 22-00827
02-03-2023
THE PEOPLE OF THE STATE OF NEW YORK EX REL. CHARLES FLOYD, PETITIONER-APPELLANT, v. DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, RESPONDENT-RESPONDENT.
WYOMING COUNTY-ATTICA LEGAL AID BUREAU, WARSAW (LEAH R. NOWOTARSKI OF COUNSEL), FOR PETITIONER-APPELLANT. LETITIA JAMES, ATTORNEY GENERAL, ALBANY (KATE H. NEPVEU OF COUNSEL), FOR RESPONDENT-RESPONDENT.
WYOMING COUNTY-ATTICA LEGAL AID BUREAU, WARSAW (LEAH R. NOWOTARSKI OF COUNSEL), FOR PETITIONER-APPELLANT.
LETITIA JAMES, ATTORNEY GENERAL, ALBANY (KATE H. NEPVEU OF COUNSEL), FOR RESPONDENT-RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, BANNISTER, AND OGDEN, JJ.
Appeal from a judgment of the Supreme Court, Wyoming County (Michael M. Mohun, A.J.), entered May 16, 2022 in a habeas corpus proceeding. The judgment denied the petition and dismissed the proceeding.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.
Memorandum: Petitioner commenced this proceeding seeking a writ of habeas corpus pursuant to CPLR article 70, contending that the Board of Parole improperly revoked his parole release after a final revocation hearing and remanded him to serve another 36 months of incarceration. Supreme Court denied the petition, and we affirm.
Contrary to petitioner's contention, the Parole Board's determination that petitioner violated the conditions of his parole is supported by substantial evidence (see People ex rel. Lewis v Hunt, 72 A.D.3d 1630, 1631 [4th Dept 2010], lv denied 15 N.Y.3d 707 [2010]; People ex rel. Fletcher v Travis, 19 A.D.3d 1097, 1098 [4th Dept 2005], lv denied 5 N.Y.3d 709 [2005]). With respect to charge one alleging that petitioner assaulted a female victim, we conclude that, contrary to petitioner's contention, the Administrative Law Judge (ALJ) who presided over the hearing was entitled to consider hearsay evidence (see Matter of Hampton v Kirkpatrick, 82 A.D.3d 1639, 1639 [4th Dept 2011]; People ex rel. Fryer v Beaver, 292 A.D.2d 876, 876 [4th Dept 2002]; see generally Matter of Currie v New York State Bd. of Parole, 298 A.D.2d 805, 805-806 [3d Dept 2002]). Moreover, the determination was not based solely on the hearsay evidence inasmuch as the victim's sworn statement was submitted in evidence and two witnesses testified at the hearing that the victim appeared frightened of petitioner and had visible bruising. Petitioner's further contention that the ALJ violated his right to due process by permitting hearsay evidence without making a specific finding of good cause was not raised at the hearing and, thus, is not preserved for our review (see Currie, 298 A.D.2d at 806).
Regarding petitioner's challenge to charges eight and nine, which allege that petitioner possessed a knife, petitioner's parole officer testified that petitioner did not have permission to carry a knife during the relevant parole supervision time period. A witness further testified that petitioner was in possession of a folding knife. To the extent that petitioner challenges the credibility of those witnesses, the ALJ was entitled to resolve such issues of credibility (see Matter of Johnson v Thompson, 134 A.D.3d 1404, 1405 [4th Dept 2015]).