Matter of Barner v Alexander

2008 NY Slip Op 08223 [55 AD3d 1182]

October 30, 2008

Appellate Division, Third Department

As corrected through Wednesday, December 10, 2008

In the Matter of Jerome Barner, Petitioner, v George Alexander, as Chairof the Division of Parole, Respondent.

—[*1]Jerome Barner, Rome, petitioner pro se.

Andrew M. Cuomo, Attorney General, Albany (Marlene O. Tuczinski of counsel), forrespondent.

Kane, 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 Parole whichrevoked petitioner's parole.

Petitioner received an aggregate sentence of 81/3 to 25 years in prison for his 1985convictions of rape in the first degree, robbery in the second degree, sodomy in the first degree andsexual abuse in the first degree. He was released to parole supervision in 2001. In 2006, after he wasinvolved in an altercation, he was charged with violating the term of his parole prohibiting him fromviolating any law or threatening the safety of others. Following a final revocation hearing, anAdministrative Law Judge found that the parole violation was established and recommended thatpetitioner's release be revoked for 12 months. On administrative appeal, the Board of Parole affirmedthe finding of a parole violation but increased the penalty to revocation of parole for the remainder ofpetitioner's sentence. This proceeding ensued.

The victim's testimony, as well as the seven pictures depicting her injuries, provided substantialevidence to support the determination that petitioner violated the enumerated condition of his parole byassaulting her (see Matter of Rogers vDennison, 47 AD3d 1149, 1150 [2008], lv denied 10 NY3d 711 [2008]; People ex rel. Washington v Ekpe, 38AD3d 1100, 1101[*2][2007], lv denied 9 NY3d 802[2007]; Matter of Williams v New YorkState Div. of Parole, 23 AD3d 800, 800-801 [2005]). Her testimony that the photographswere an accurate representation of her injuries was sufficient to support their admission into evidence(see People v Patterson, 93 NY2d 80, 84 [1999]; People v Brown, 216 AD2d 737,738 [1995]).

As for petitioner's argument that the Board's imposition of a hold until his maximum expiration datewas excessive, it is within the Board's discretion to impose a period longer than that recommended bythe Administrative Law Judge (see Matter ofSantiago v Dennison, 45 AD3d 994, 995 [2007]; Matter of Otero v New York State Bd.of Parole, 266 AD2d 771, 772 [1999], lv denied 95 NY2d 758 [2000]). Given theseverity of the crimes for which petitioner was originally convicted and the nature of the assault againstthe complainant, we decline to disturb the Board's determination (see Matter of Otero v New YorkState Bd. of Parole, 266 AD2d at 772). Petitioner's remaining arguments have been consideredand found to be without merit.

Peters, J.P., Rose, Lahtinen and Kavanagh, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.