| Matter of Mack v Alexander |
| 2009 NY Slip Op 03064 [61 AD3d 1222] |
| April 23, 2009 |
| Appellate Division, Third Department |
| In the Matter of Allen Mack, Petitioner, v George B. Alexander, asChair of the New York State Division of Parole, Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Frank Brady of counsel), forrespondent.
Malone Jr., J. Proceeding pursuant to CPLR article 78 (transferred to this Court by order ofthe Supreme Court, entered in Albany County) to review a determination of the Board of Parolewhich revoked petitioner's parole.
While serving a prison sentence for rape in the first degree, petitioner was released on parolein September 2005. In December 2005, petitioner was charged with violating the terms of hisparole in various respects. There were initially six charges, and two more were subsequentlyadded. A hearing was ultimately held only on the eighth charge, which alleged that petitionerpunched a correction officer while he was incarcerated awaiting a hearing on the parolerevocation charges. Following the hearing, an Administrative Law Judge sustained that chargeand ordered that petitioner be held until the maximum expiration date of his sentence. Followingan unsuccessful administrative appeal, petitioner commenced this CPLR article 78 proceeding[*2]challenging various aspects of his parolerevocation.[FN*]
We confirm. Initially, petitioner raises a variety of issues regarding the parole revocationcharges and the preliminary hearing on those charges. Petitioner made similar arguments in aseparate habeas corpus proceeding that was ultimately dismissed (People ex rel. Mack v Warden, Rikers Is.Correctional Facility, 55 AD3d 426 [2008], lv denied 11 NY3d 715 [2009]).Petitioner, as a result, is precluded from relitigating both the issues raised by him in thatproceeding and new arguments related to the charges and preliminary hearing (see Matter ofAllen v New York State Div. of Parole, 252 AD2d 691, 691-692 [1998]; Matter ofMcAllister v Division of Parole of N.Y. State, 186 AD2d 326, 327 [1992]). Petitioner didnot challenge the parole revocation itself in that CPLR article 70 proceeding and, indeed, couldnot have because his petition predated the completion of the revocation hearing and therevocation itself. As such, petitioner's challenges to the revocation hearing and revocation are notprecluded (see Matter of Tucci v Ambach, 110 AD2d 1014, 1015 [1985]).
Turning to the merits, "a determination to revoke parole will be confirmed if the proceduralrequirements were followed and there is evidence which, if credited, would support suchdetermination" (Matter of Layne v New York State Bd. of Parole, 256 AD2d 990, 992[1998], lv dismissed 93 NY2d 886 [1999]; see Matter of Santiago v Dennison, 45 AD3d 994, 995 [2007]).Based upon our review of the record, substantial evidence to support the Board's determinationexists in the correction officer's testimony that petitioner punched her. Petitioner's testimonydiffered from that of the correction officer's, but "it is within the province of the Board to resolveissues of credibility, and to determine the relative weight to be assigned to the evidence" (Matter of Kovalsky v New York State Div.of Parole, 30 AD3d 679, 680 [2006] [citations omitted]).
We have examined petitioner's remaining arguments and, to the extent they may properly beconsidered, find them to be without merit.
Cardona, P.J., Mercure, Kavanagh and McCarthy, JJ., concur. Adjudged that thedetermination is confirmed, without costs, and petition dismissed.
Footnote *: Petitioner has been releasedfrom prison due to the expiration of his sentence, but such does not render this proceeding moot,as "petitioner was found to have been a parole violator which may have lasting consequencesdespite the expiration of his sentence" (Matter of Biondo v New York State Bd. ofParole, 60 NY2d 832, 834 [1983]; see Matter of Moore v Alexander, 53 AD3d 747, 748 n 1 [2008],lv denied 11 NY3d 710 [2008]; Matter of Williams v New York State Bd. ofParole, 225 AD2d 490, 491 [1996], lv denied 88 NY2d 810 [1996]).