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In the Matter of Sergio Ulysse v. New York State Board of Parole

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


December 6, 2012

IN THE MATTER OF SERGIO ULYSSE, PETITIONER,
v.
NEW YORK STATE BOARD OF PAROLE, RESPONDENT.

The opinion of the court was delivered by: Mercure, J.P.

MEMORANDUM AND JUDGMENT

Calendar Date: October 10, 2012

Before: Mercure, J.P., Lahtinen, Kavanagh, McCarthy 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 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 revoked 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 AD2d 990, 992 [1998], lv dismissed 93 NY2d 886 [1999]; accord Matter of McCowan v Evans, 81 AD3d 1028, 1029 [2011]; Matter of Rago v Alexander, 60 AD3d 1123, 1123 [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 (see Executive 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.

Lahtinen, Kavanagh, McCarthy and Garry, JJ., concur.

ADJUDGED that the determination is annulled, without costs, and matter remitted to respondent for further proceedings not inconsistent with this Court's decision.

ENTER:

Robert D. Mayberger Clerk of the Court

20121206

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