| Matter of Ariola v New York State Div. of Parole |
| 2009 NY Slip Op 04148 [62 AD3d 1228] |
| May 28, 2009 |
| Appellate Division, Third Department |
| In the Matter of Christopher D. Ariola, Petitioner, v New YorkState Division of Parole et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Kate H. Nepveu of counsel), forrespondents.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Albany County) to review a determination of the Board of Parole whichrevoked petitioner's parole.
Petitioner was convicted of manslaughter in the first degree stemming from the beating deathof his father, as well as attempted robbery in the third degree stemming from an incident wherethe victim was assaulted with a bottle. In February 2007, he was conditionally released to parolesupervision. In light of his "extensive mental health history," a special condition was imposedrequiring petitioner to complete a particular counseling program and refrain from discontinuingsuch program until granted permission to do so by his parole officer. Less than six weeks later,petitioner was charged with violating this condition after he, among other things, failed toprovide sufficient information to permit an accurate assessment of his mental health/substanceabuse status and need for treatment. Following a final revocation hearing, he was found guilty ofthree of four charges, his parole was revoked and a 24-month hold was imposed. Thedetermination was affirmed upon administrative review, prompting this CPLR article 78proceeding.
"[A] determination to revoke parole will be confirmed if the procedural requirements werefollowed and there is evidence which, if credited, would support such determination" (Matterof Layne v New York State Bd. of Parole, 256 AD2d 990, 992 [1998], lv dismissed93 NY2d 886 [1999]; see Matter ofSantiago v Dennison, 45 AD3d 994, 995 [2007]; Matter of Kovalsky v New York State Div. of Parole, 30 AD3d679, 680 [2006]). Here, the record establishes that, despite being aware of the need tocomplete the specified counseling program, petitioner did not cooperate so as to permit anappropriate assessment. Petitioner's contrary testimony presented a credibility issue for theBoard of Parole to resolve (see Matterof Davidson v New York State Div. of Parole, 34 AD3d 998 [2006], lv denied 8NY3d 803 [2007]; Matter of Faulkner vNew York State Div. of Parole, 25 AD3d 1047, 1048 [2006]).
To the extent that petitioner challenges the imposition of this special condition, it is wellsettled that "[t]he imposition of a special condition upon the release of an inmate is discretionaryin nature and beyond judicial review so long as it is made in accordance with law" (Matter of Ahlers v New York State Div. ofParole, 1 AD3d 849, 849 [2003]; see People ex rel. Stevenson v Warden of Rikers Is., 24 AD3d 122,123 [2005], lv denied 6 NY3d 712 [2006]). Further, a special condition may be imposedprior or subsequent to release on parole, and "the circumstances of the parolee's crime may betaken into account when setting these conditions" (Matter of M.G. v Travis, 236 AD2d163, 167 [1997], lv denied 91 NY2d 814 [1998]). In view of the nature of petitioner'scrimes and expressed concerns regarding his mental health, we cannot say that the imposition ofthis special condition was irrational. To the extent that petitioner contends that the conditioninfringes upon his right to privacy, we find that it was "reasonably related to petitioner's pastcrime and future chances of recidivism" and thus permissible (Matter of M.G. v Travis,236 AD2d at 169). His remaining contentions, including the assertion that the hold imposed wasexcessive, have been examined and found to be lacking in merit.
Peters, J.P., Spain, Kane, McCarthy and Garry, JJ., concur. Adjudged that the determinationis confirmed, without costs, and petition dismissed.