Opinion
2012-07-5
In the Matter of Steven TOOMER, Petitioner, v. WARDEN OF ADIRONDACK CORRECTIONAL FACILITY et al., Respondents.
O'Connor & Petromelis, LLP, Latham (Chris Petromelis of counsel), for petitioner. Eric T. Schneiderman, Attorney General, Albany (Laura Etlinger of counsel), for respondents.
O'Connor & Petromelis, LLP, Latham (Chris Petromelis of counsel), for petitioner. Eric T. Schneiderman, Attorney General, Albany (Laura Etlinger of counsel), for respondents.
Before: PETERS, P.J., ROSE, MALONE JR., McCARTHY and EGAN JR., JJ.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of the Board of Parole which revoked petitioner's parole.
Petitioner was convicted of assault in the second degree and sentenced in 2008 to a prison term of two years followed by three years of postrelease supervision. After his release on parole supervision, petitioner was charged, as is relevant here, with violating a condition of his release when he allegedly threatened the safety and well-being of two child protective caseworkers who were investigating a reported incident at petitioner's home. Following a final revocation hearing, those charges were sustained. The Board of Parole revoked petitioner's release and imposed a hold to petitioner's maximum expiration date. After an unsuccessful administrative appeal, petitioner commenced this CPLR article 78 proceeding.
Although petitioner also was charged with several other violations, those charges were withdrawn.
We confirm. “A determination to revoke parole will be confirmed if the procedural requirements were followed and there is evidence which, if credited, would support such determination” (Matter of McCowan v. Evans, 81 A.D.3d 1028, 1029, 916 N.Y.S.2d 290 [2011] [internal quotation marks and citations omitted] ). Here, the testimony of the caseworkers established that they fled petitioner's home shortly after arriving because petitioner told them to get out of his house or he was “getting his gun and shooting everybody.” The consistent and detailed testimony at the hearing, including petitioner's testimony that he did, in fact, tell the caseworkers to leave, provides substantial evidence to support the determination that petitioner violated the conditions of his release. Although petitioner denied any threatening behavior, this presented a credibility issue for the Administrative Law Judge to resolve ( see Matter of Davis v. New York State Bd. of Parole, 81 A.D.3d 1020, 1021, 915 N.Y.S.2d 771 [2011];Matter of Williams v. New York State Div. of Parole, 23 A.D.3d 800, 800–801, 803 N.Y.S.2d 320 [2005] ). Petitioner's remaining contentions have been examined and found to be either unpreserved or without merit.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.