Opinion
11-10-2016
In the Matter of Troy WASHINGTON, Petitioner–Appellant, v. Anthony ANNUCCI, Acting Commissioner, New York State Department of Corrections and Community Supervision, Respondent–Respondent.
Wyoming County–Attica Legal Aid Bureau, Warsaw (Adam W. Koch of Counsel), for Petitioner–Appellant. Eric T. Schneiderman, Attorney General, Albany (Kate H. Nepveu of Counsel), for Respondent–Respondent.
Wyoming County–Attica Legal Aid Bureau, Warsaw (Adam W. Koch of Counsel), for Petitioner–Appellant.
Eric T. Schneiderman, Attorney General, Albany (Kate H. Nepveu of Counsel), for Respondent–Respondent.
PRESENT: WHALEN, P.J., SMITH, LINDLEY, TROUTMAN, AND SCUDDER, JJ.
MEMORANDUM:Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination of the Administrative Law Judge (ALJ) revoking his release to parole supervision. Even assuming, arguendo, that petitioner has not abandoned on appeal his contention that the ALJ relied on erroneous information in determining the time assessment to be imposed (see generally Ciesinski v. Town of Aurora, 202 A.D.2d 984, 984, 609 N.Y.S.2d 745 ), we conclude that petitioner failed to preserve that contention for our review inasmuch as he did not bring the alleged error to the ALJ's attention at a time “when the error could [have been] corrected” (Matter of Kirk v. Hammock, 119 A.D.2d 851, 854, 500 N.Y.S.2d 424 ; see Matter of Bowes v. Dennison, 20 A.D.3d 845, 846, 800 N.Y.S.2d 459 ). In any event, there is no indication that the ALJ relied on the allegedly inaccurate information in determining the time assessment to be imposed (see Matter of Boccadisi v. Stanford, 133 A.D.3d 1169, 1170–1171, 20 N.Y.S.3d 477 ; cf. Matter of Henry v. Dennison, 40 A.D.3d 1175, 1175, 833 N.Y.S.2d 418 ).
Contrary to the further contention of petitioner, the 36–month time assessment imposed against him is not excessive. It is well settled that “[t]he Executive Law does not place an outer limit on the length of that assessment, and [respondent's] determination may not be modified upon judicial review in the absence of impropriety” (Matter of Horace v. Annucci, 133 A.D.3d 1263, 1265, 20 N.Y.S.3d 492 [internal quotation marks omitted]; see Executive Law § 259–i[3][f][x] ; [g]; Matter of Wilson v. Evans, 104 A.D.3d 1190, 1191, 960 N.Y.S.2d 807 ). Petitioner was a category 1 violator (see 9 NYCRR 8005.20 [c][1][v] ), and thus “the minimum time assessment [was required to] be either 15 months or a hold to the ‘maximum expiration of the sentence, whichever [was] less' ” (Horace, 133 A.D.3d at 1265, 20 N.Y.S.3d 492, quoting 9 NYCRR 8005.20 [c][1] ). Under the circumstances of this case, including the nature of the underlying charge as well as the nature of the violations, including the “ongoing” nature of petitioner's drug use, we conclude that there was no impropriety, and thus no reason to modify the 36–month time assessment.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.