| Matter of Santiago v Dennison |
| 2007 NY Slip Op 08322 [45 AD3d 994] |
| November 8, 2007 |
| Appellate Division, Third Department |
| In the Matter of Anthony Santiago, Petitioner, v Robert Dennison,as Chair of the New York State Board of Parole, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Kathleen M. Arnold of counsel), forrespondent.
Lahtinen, J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order of theSupreme Court, entered in Albany County) to review a determination of the Board of Parolewhich revoked petitioner's parole.
Petitioner was convicted in 1999 of attempted sodomy in the first degree based upon actsperpetrated upon a four-year-old girl and he was sentenced to five years in jail followed by fiveyears of postrelease supervision. Since his conviction was for a sexual offense against a childvictim, his release on parole in September 2003 was subject to certain special conditions,including that he not possess any children's toys. During a routine search of the lockers ofparolees at the shelter where he was residing, a bag containing approximately 50 children's toyswas found in petitioner's locker. He claimed the toys belonged to Hector Risotto, another residentof the shelter. Following a parole revocation hearing, an Administrative Law Judge (hereinafterALJ) determined that petitioner had violated a condition of his parole and recommended that hisrelease be revoked for 24 months. The finding of a parole violation was affirmed onadministrative appeal but the penalty was increased to revoke parole for the remainder ofpetitioner's sentence. This proceeding ensued.[*2]
We turn first to petitioner's argument that there was notsufficient evidence to support the determination of the Board of Parole. Our review of theadequacy of the evidence in a proceeding of this nature is "limited to an examination of therecord to ascertain whether there exists substantial evidence to support [the Board'sdetermination]" (Matter of Bolton vDennison, 38 AD3d 1077, 1078 [2007] [internal quotation marks and citations omitted];accord Matter of Faulkner v New YorkState Div. of Parole, 25 AD3d 1047, 1048 [2006]). "[I]t is within the province of theBoard to resolve issues of credibility, and to determine the relative weight to be assigned to theevidence" (Matter of Kovalsky v NewYork State Div. of Parole, 30 AD3d 679, 680 [2006] [citations omitted]; see Matter of Covington v Dennison,39 AD3d 974, 975 [2007], lv denied 9 NY3d 802 [2007]). Here, there was evidencethat petitioner was directed to open his locker, he did so, and the bag of toys was containedtherein. Petitioner contended that the bag belonged to Risotto, he had permitted Risotto to use hislocker for storage and he did not know what was in the bag. However, testimony from a paroleofficer established that Risotto's locker was also inspected and there was ample room for the bagin Risotto's locker. Under all the circumstances, the record contains sufficient evidence thatpetitioner violated a condition of his parole. In light of the nature of petitioner's crime, thecondition is not, as he now suggests, an unimportant one. Further, he had been fully apprised ofthe special conditions of his parole, signed an acknowledgment thereof and had been provided acopy of that document.
The argument that the ALJ failed to give a written statement (see Executive Law§ 259-i [3] [f] [xi]) is belied by the record, which includes the ALJ's handwritten decisionsetting forth the evidence relied upon and the reasons for the decision. As for the decision by theBoard to reincarcerate petitioner for the remainder of his sentence, it was within the Board'sdiscretion to impose a longer period than recommended by the ALJ (see Matter of Otero vNew York State Bd. of Parole, 266 AD2d 771, 772 [1999], lv denied 95 NY2d 758[2000]) and the penalty imposed was not harsh or an abuse of discretion (see Matter ofBellamy v New York State Div. of Parole, 274 AD2d 871, 872-873 [2000]; Matter ofSmith v Travis, 253 AD2d 955, 955-956 [1998]). The remaining arguments have beenconsidered and found to be without merit.
Cardona, P.J., Crew III, Mugglin and Rose, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.