Opinion
2013-03-15
In the Matter of Antonio WILSON, Petitioner, v. Andrea W. EVANS, Chairwoman, New York State Department of Corrections and Community Supervision, Respondent.
Wyoming County–Attica Legal Aid Bureau, Warsaw (Leah R. Nowotarski of Counsel), for Petitioner. Eric T. Schneiderman, Attorney General, Albany (Victor Paladino of Counsel), for Respondent.
Wyoming County–Attica Legal Aid Bureau, Warsaw (Leah R. Nowotarski of Counsel), for Petitioner. Eric T. Schneiderman, Attorney General, Albany (Victor Paladino of Counsel), for Respondent.
PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND VALENTINO, 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. “[I]t is well settled that a determination to revoke parole will be confirmed if the procedural requirements were followed and there is evidence [that], 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,lv. dismissed93 N.Y.2d 886, 689 N.Y.S.2d 427, 711 N.E.2d 641,rearg. denied93 N.Y.2d 1000, 695 N.Y.S.2d 746, 717 N.E.2d 1083;see Matter of Lozada v. New York State Div. of Parole, 61 A.D.3d 1393, 1394, 877 N.Y.S.2d 552). We conclude that the determination that petitioner violated the conditions of his release by consuming alcohol is supported by substantial evidence ( see generally Matter of Shaw v. Murray, 24 A.D.3d 1268, 1269, 808 N.Y.S.2d 844,lv. denied6 N.Y.3d 712, 816 N.Y.S.2d 747, 849 N.E.2d 970). Among the evidence presented at the final parole revocation hearing was a signed form in which petitioner acknowledged that he consumed alcohol in violation of the conditions of his release. Additionally, the parole officer who prepared the form for petitioner's signature denied that petitioner was coerced or encouraged to sign the form. Petitioner's testimony that he had not consumed alcohol since his release from prison and that he was coerced into signing the acknowledgment form “merely presented a credibility issue that the ALJ was entitled to resolve against petitioner” ( Matter of Johnson v. Alexander, 59 A.D.3d 977, 978, 872 N.Y.S.2d 819;see Matter of Hampton v. Kirkpatrick, 82 A.D.3d 1639, 1639, 919 N.Y.S.2d 422). We have reviewed petitioner's remaining contentions with regard to the evidence supporting the ALJ's determination and conclude that they are without merit.
Petitioner's further contention that the ALJ should have adjourned the hearing to seek more information regarding the intoximeter's maintenance and to seek an expert opinion is unpreserved for our review inasmuch as petitioner failed to request an adjournment ( see generally Lozada, 61 A.D.3d at 1394, 877 N.Y.S.2d 552;see also Matter of Stanbridge v. Hammock, 55 N.Y.2d 661, 663, 446 N.Y.S.2d 929, 431 N.E.2d 290).
We reject petitioner's contention that the 30–month time assessment imposed against him is excessive. Petitioner correctly acknowledges that “[t]he Executive Law does not place an outer limit on the length of [the time] assessment [that may be imposed], and the [ALJ's] determination may not be modified upon judicial review in the absence of impropriety” ( Matter of Murchison v. New York State Div. of Parole, 91 A.D.3d 1005, 1005, 935 N.Y.S.2d 741 [internal quotation marks omitted]; see generally People ex rel. Matthews v. New York State Div. of Parole, 58 N.Y.2d 196, 205, 460 N.Y.S.2d 746, 447 N.E.2d 689). Under the circumstances of this case, including the fact that petitioner committed the violation only two days after his release, we discern no impropriety here. Finally, the record does not support petitioner's contention that he was denied effective assistance of counsel ( see generally People v. Baldi, 54 N.Y.2d 137, 146–147, 444 N.Y.S.2d 893, 429 N.E.2d 400;Matter of McDonald v. Russi, 213 A.D.2d 650, 650, 624 N.Y.S.2d 932).
It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.