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Lewis v. Alexander

State of New York Supreme Court, Appellate Division Third Judicial Department


December 17, 2009

IN THE MATTER OF ANTHONY LEWIS, PETITIONER,
v.
GEORGE ALEXANDER, AS CHAIR OF THE DIVISION OF PAROLE, RESPONDENT.

MEMORANDUM AND JUDGMENT

Calendar Date: November 4, 2009

Before: Peters, J.P., Rose, Kane, Stein and Garry, 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.

In 2004, petitioner was convicted of two felonies and sentenced to concurrent prison terms of 41/2 to 9 years. In August 2006, he was released to parole supervision. In February 2007, petitioner was charged with violating the terms of his parole by, among other things, assaulting and raping a female acquaintance and possessing marihuana. Following a final parole revocation hearing, an Administrative Law Judge sustained three charges and recommended that petitioner's parole be revoked and he be held until his maximum expiration date. The Board of Parole affirmed that decision, prompting petitioner to commence this proceeding.

We confirm. Courts will uphold a determination to revoke parole 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 AD2d 990, 992 [1998], lv dismissed 93 NY2d 886 [1999]; see Matter of Simpson v Alexander, 63 AD3d 1495, 1496 [2009]). Here, the testimony of the victim provided substantial evidence to support the determination that he assaulted and raped her. Petitioner's contrary testimony raised an issue of credibility that was within the province of the Board to resolve (see Matter of Simpson v Alexander, 63 AD3d at 1496; People ex rel. Gonzalez v LaClair, 63 AD3d 1493, 1494 [2009], lv denied 13 NY3d 705 [2009]). The charge that petitioner possessed marihuana was amply supported by petitioner's positive drug test, his signed admission and his own testimony.

Contrary to petitioner's contention, there is no indication that the Board failed to review his case as required by 9 NYCRR 8005.21. The Board does not advise a parolee that his or her matter is under review (see 9 NYCRR 8005.21 [a]), and notice is not provided unless the review results in a reduction of the time assessment imposed (see 9 NYCRR 8005.21 [c]). We have examined petitioner's remaining contentions and find them to be without merit.

Peters, J.P., Rose, Kane, Stein and Garry, JJ., concur.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.

20091217

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