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In re Gonzalez

Supreme Court of New York, Fourth Department

June 14, 2013

IN THE MATTER OF MICHAEL GONZALEZ, PETITIONER-APPELLANT,
v.
DALE ARTUS, SUPERINTENDENT, GOWANDA CORRECTIONAL FACILITY, AND BRIAN FISCHER, COMMISSIONER, NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, RESPONDENTS-RESPONDENTS.

Appeal from a judgment (denominated order) of the Supreme Court, Erie County (Penny M. Wolfgang, J.), dated June 26, 2012 in a proceeding pursuant to CPLR article 78. The judgment dismissed the petition.

MICHAEL GONZALEZ, PETITIONER-APPELLANT PRO SE.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (FRANK BRADY OF COUNSEL), FOR RESPONDENTS-RESPONDENTS.

PRESENT: SMITH, J.P., FAHEY, CARNI, VALENTINO, AND WHALEN, JJ.

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.

Memorandum: Petitioner commenced this proceeding seeking a writ of habeas corpus. Supreme Court (Feroleto, J.) converted the proceeding to one pursuant to CPLR article 78. The case was then assigned to a different Supreme Court Justice (Wolfgang, J.), who ultimately dismissed the petition. Petitioner appeals, and we affirm.

Respondents concede that the record does not conclusively establish that petitioner failed to exhaust his administrative remedies, and thus we reach the merits of this appeal (cf. generally Matter of Karlin v Cully, 104 A.D.3d 1285, 1286). Here, petitioner pleaded guilty to violating two conditions of his parole. Petitioner now challenges the parole revocation determination on the ground that one of the conditions of parole at issue, i.e., the condition precluding fraternization with any person petitioner knows to have a criminal record (fraternization condition) (see 9 NYCRR 8003.2 [g]), is unconstitutionally vague. That challenge survives petitioner's guilty plea (see People v Hansen, 95 N.Y.2d 227, 231 n 2 ; People v Lee, 58 N.Y.2d 491, 494), but is not properly before us inasmuch as the record does not establish that it was raised before the motion court (see Ciesinski v Town of Aurora, 202 A.D.2d 984, 985; cf. Palermo v Taccone, 79 A.D.3d 1616, 1618). Petitioner's further contention that the fraternization condition was arbitrarily applied to him is foreclosed by his guilty plea (see Hansen, 95 N.Y.2d at 231 n 3; People v Rodriguez, 55 N.Y.2d 776, 777). Additionally, with respect to both of the conditions of parole at issue, we note that petitioner's "plea ...


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