| Matter of Rogers v Dennison |
| 2008 NY Slip Op 00402 [47 AD3d 1149] |
| January 24, 2008 |
| Appellate Division, Third Department |
| In the Matter of Eric Rogers, Petitioner, v Robert Dennison, asChair of the New York State Board of Parole, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Andrea Oser of counsel), forrespondent.
Peters, 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.
While serving a prison sentence of 7½ to 22½ years for his conviction ofmanslaughter in the first degree, petitioner was released on parole in December 2004. In May2005, after being arrested and criminally charged with assault in the third degree and resistingarrest, petitioner was charged with violating the conditions of his parole that forbade him frombehavior which violates the provisions of any law that provides for a period of imprisonment orthreatens the safety and well-being of others (see 9 NYCRR 8003.2 [h]). After a finalrevocation hearing, the Administrative Law Judge sustained the charges, revoked petitioner'sparole and recommended that he be held until the maximum expiration date of his sentence. TheAdministrative Law Judge's determination was administratively affirmed and petitioner thereaftercommenced this CPLR article 78 proceeding to challenge that determination.
"It is well settled that 'a determination to revoke parole will be confirmed if the [*2]procedural requirements were followed and there is evidencewhich, if credited, would support such determination' " (Matter of Williams v New York State Div. of Parole, 23 AD3d800, 800 [2005], quoting Matter of Layne v New York State Bd. of Parole, 256AD2d 990, 992 [1998], lv dismissed 93 NY2d 886 [1999]; accord Matter of Davidson v New YorkState Div. of Parole, 34 AD3d 998, 998 [2006], lv denied 8 NY3d 803 [2007]).Here, the victim testified that as he was walking through Central Park in New York City,petitioner, without provocation, struck him in the face. After petitioner followed him out of thepark acting in a menacing manner, the victim called 911 and, when the police arrived fiveminutes later, petitioner fled. A chase ensued and, although petitioner began kicking and twistingto get free, four police officers were able to subdue petitioner and arrest him.
This testimony supports the determination that petitioner violated the terms of his parole.The fact that the victim's injuries did not rise to the level required of the criminal charge madeagainst petitioner (see Penal Law § 10.00 [9]; § 120.00) does not, contrary topetitioner's argument, preclude the Board of Parole from revoking his parole, as the revocation isbased on petitioner's conduct underlying the criminal charges, which violated conditions of hisparole (see Matter of Davidson v New York State Div. of Parole, 34 AD3d at 999; Matter of Young v Dennison, 29 AD3d1194, 1195 [2006]; Matter of Williams v New York State Bd. of Parole, 277 AD2d617, 617 [2000]; Matter of Cole v Travis, 275 AD2d 874, 875 [2000]). Furthermore,given the violent aspect of petitioner's conduct and his criminal history, as well as the fact thatthe parole violation occurred within five months of his release, the Board's decision to hold himuntil his maximum expiration date is not excessive (see Matter of Davidson v New YorkState Div. of Parole, 34 AD3d at 999; Matter of Cole v Travis, 275 AD2d at 875).
Mercure, J.P., Rose, Lahtinen and Kavanagh, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.