Opinion
2012-12-6
In the Matter of Sergio ULYSSE, Petitioner, v. NEW YORK STATE BOARD OF PAROLE, Respondent.
Barry Gene Rhodes, New York City, for petitioner. Eric T. Schneiderman, Attorney General, Albany (Laura Etlinger of counsel), for respondent.
Barry Gene Rhodes, New York City, for petitioner. Eric T. Schneiderman, Attorney General, Albany (Laura Etlinger of counsel), for respondent.
Before: MERCURE, J.P., LAHTINEN, KAVANAGH, McCARTHY AND GARRY, JJ.
MERCURE, J.P.
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 respondent which revoked petitioner's parole.
Petitioner was sentenced to seven years in prison to be followed by five years of postrelease supervision upon his conviction of the crime of robbery in the second degree in 2003. He was thereafter granted release to parole supervision. In October 2010, a notice of violation was filed and, following a parole revocation hearing, an Administrative Law Judge (hereinafter ALJ) found that petitioner had violated four conditions of his parole. The ALJ *508revoked petitioner's parole and imposed a 24–month time assessment. That determination was affirmed upon administrative appeal, and this proceeding ensued.
It is well established that “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 Layne v. New York State Bd. of Parole, 256 A.D.2d 990, 992, 684 N.Y.S.2d 4 [1998],lv. dismissed93 N.Y.2d 886, 689 N.Y.S.2d 427, 711 N.E.2d 641 [1999];accord. Matter of McCowan v. Evans, 81 A.D.3d 1028, 1029, 916 N.Y.S.2d 290 [2011];Matter of Rago v. Alexander, 60 A.D.3d 1123, 1123, 874 N.Y.S.2d 605 [2009] ). Although respondent had located a copy of the exhibits that were entered into evidence at the revocation hearing, it decided the administrative appeal without reviewing the exhibits. Inasmuch as the applicable statutes and regulations contemplate a procedure whereby respondent's decision is made upon review of the entire record that was before the ALJ ( seeExecutive Law § 259–i[4]; 9 NYCRR 8006.2, 8006.4), respondent's determination must be annulled and the matter remitted for further review. In light of our conclusion, petitioner's remaining contentions are academic.
ADJUDGED that the determination is annulled, without costs, and matter remitted to respondent for further proceedings not inconsistent with this Court's decision.