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Portacio v. New York State Division of Parole

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


January 14, 2010

IN THE MATTER OF GREGORY PORTACIO, APPELLANT,
v.
NEW YORK STATE DIVISION OF PAROLE, RESPONDENT.

MEMORANDUM AND ORDER

Calendar Date: November 30, 2009

Before: Peters, J.P., Lahtinen, Malone Jr., McCarthy and Garry, JJ.

Appeal from a judgment of the Supreme Court (Platkin, J.), entered July 2, 2009 in Albany County, which, in a proceeding pursuant to CPLR article 78, granted respondent's motion to dismiss the petition.

Petitioner was sentenced in October 2000 to a prison term of five years and five years of postrelease supervision for his conviction upon a plea of guilty to sodomy and criminal possession of a weapon. He was thereafter paroled in November 2005. However, during a December 2007 parole revocation hearing, petitioner pleaded guilty to two curfew violations in exchange for the recommendation of a 14-month hold by the Administrative Law Judge and his parole was revoked. The Board of Parole modified the recommendation of the Administrative Law Judge and ordered petitioner held until his maximum expiration date. Petitioner commenced this CPLR article 78 proceeding to challenge that determination. Respondent moved to dismiss the petition and Supreme Court granted the motion. Petitioner now appeals.

On appeal, respondent concedes and we agree that the portion of the petition challenging the time assessment imposed by the Board is not foreclosed by his plea of guilty to the parole violations. Because respondent has not served an answer to the petition and the record is inadequate to permit meaningful review of petitioner's claim, it is appropriate for the matter to be remitted to Supreme Court for this purpose on an expedited basis (see Matter of Grune v New York State Bd. of Parole, 31 AD3d 919, 919 [2006]; Matter of Mauleon v Goord, 18 AD3d 992, 992-993 [2005]).

Peters, J.P., Lahtinen, Malone Jr., McCarthy and Garry, JJ., concur.

ORDERED that the judgment is modified, on the law, without costs, by reversing so much thereof as granted the motion challenging the time assessment imposed; motion denied to that extent and matter remitted to the Supreme Court to permit respondent to serve an answer within 15 days of the date of this Court's decision; and, as so modified, affirmed.

20100114

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