| Matter of Rago v Alexander |
| 2009 NY Slip Op 01561 [60 AD3d 1123] |
| March 5, 2009 |
| Appellate Division, Third Department |
| In the Matter of Antonio Rago, Petitioner, v George B. Alexander,as Chair of the New York State Division of Parole, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Frank Brady 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 rape in the first degree and sodomy in the first degreeand sentenced to concurrent prison terms of six years followed by five years of postreleasesupervision. When petitioner was released to parole supervision in September 2005, he wassubject to certain special conditions, including provisions that prohibited him from leaving thecounty or having contact with children under the age of 18 without the approval of his paroleofficer. In April 2006, petitioner was charged with, among other things, violating the foregoingconditions of his parole. Following a final revocation hearing, an Administrative Law Judge(hereinafter ALJ) found that a parole violation had been established and recommended thatpetitioner be held for 53 months—the maximum expiration of his term. The ALJ'sdecision was affirmed upon administrative appeal, prompting petitioner to commence thisproceeding pursuant to CPLR article 78 to challenge the Board of Parole's determination.[*2]
"It is well settled that a determination to revoke parolewill be confirmed if the procedural requirements were followed and there is evidence which, ifcredited, would support such determination" (Matter of Williams v New York State Div. of Parole, 23 AD3d800, 800 [2005] [internal quotation marks and citation omitted]; see Matter of Mosley v Dennison, 30AD3d 975, 976 [2006], lv denied 7 NY3d 712 [2006]). Here, three witnessestestified that petitioner, who resided in Dutchess County, was present in Ulster County duringlate April 2006, and one of those witnesses further testified that, during one such visit, petitionerwas in the presence of a one-year-old child. As there is nothing in the record to suggest thatpetitioner obtained the required approvals from his parole officer, we find that the determinationis supported by substantial evidence (cf.Matter of Brew v New York State Div. of Parole, 22 AD3d 930 [2005]). The recordreflects that petitioner was fully apprised of the relevant special conditions, as evidenced by hissigned acknowledgment thereof (seeMatter of Santiago v Dennison, 45 AD3d 994, 995 [2007]), and we reject his presentassertion that his violations were "technical" in nature and cannot support a finding that heviolated a condition of his parole "in an important respect" (Executive Law § 259-i [3] [c][iv]).
As for petitioner's claim that the Board's imposition of a hold until his maximum expirationdate was grossly excessive, we need note only that the ultimate authority to reincarceratepetitioner and fix a date for his release lies within the sound discretion of the Board (seeMatter of Santiago v Dennison, 45 AD3d at 995). Based upon our review of the record as awhole, we perceive no abuse of that discretion here. Petitioner's remaining contentions, includinghis assertion that the recommendation made by the ALJ was vindictive and was proposed inretaliation for petitioner exercising his right to a hearing, have been examined and found to belacking in merit.
Mercure, J.P., Rose, Kane and Malone Jr., JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.