| Matter of Simpson v Alexander |
| 2009 NY Slip Op 05247 [63 AD3d 1495] |
| June 25, 2009 |
| Appellate Division, Third Department |
| In the Matter of Anthony Simpson, Petitioner, v George B.Alexander, as Chair of the New York State Division of Parole,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Julie M. Sheridan of counsel), forrespondent.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the SupremeCourt, entered in Clinton County) to review a determination of the Board of Parole whichrevoked petitioner's parole.
In 1993, petitioner was convicted of manslaughter in the first degree and was sentenced to 7to 21 years in prison. In July 2006, he was released to parole supervision. Thereafter, he wasinvolved in a physical altercation with his girlfriend while he was intoxicated, after which he wasarrested and charged with assault in the third degree. As a consequence of this incident,petitioner was charged with violating various conditions of his parole, including, among others,those prohibiting him from consuming alcohol and violating the law or threatening the safety ofothers. After petitioner waived his right to a preliminary parole revocation hearing, a final parolerevocation hearing was held. At the conclusion of the hearing, the Administrative Law Judgesustained the charges and recommended that petitioner's parole be revoked and that he be helduntil his maximum expiration date. The Board of Parole affirmed this decision and this CPLRarticle 78 proceeding ensued.
Initially, "[i]t is well settled that a determination to revoke parole will be confirmed if theprocedural requirements were followed and there is evidence which, if credited, would [*2]support such determination" (Matter of Rago v Alexander, 60 AD3d 1123, 1123 [2009] [internalquotation marks and citations omitted]). We note that it is the province of the Board to resolvecredibility issues and to determine the relative weight to be accorded the evidence (see Matter of Santiago v Dennison, 45AD3d 994, 995 [2007]; Matter ofKovalsky v New York State Div. of Parole, 30 AD3d 679, 680 [2006]).
Here, the police officers who responded to the scene of the domestic dispute testified that,when they arrived, the victim had an open wound on her face and that she indicated thatpetitioner had hit her. This was substantiated by the written statement provided by the victim aspart of the domestic incident report, as well as the testimony of the parole officer whoinvestigated the incident. In addition, the officers testified that petitioner exhibited many signs ofintoxication, including urinating in the patrol car after he was taken into custody, and admittedthat he had been drinking and had struck the victim. The foregoing provides substantial evidenceto support the determination of guilt with respect to the parole violations at issue (see Matterof Currie v New York State Bd. of Parole, 298 AD2d 805, 805 [2002]). The contrarytestimony of petitioner and the victim's recantation of her prior written statement presentedcredibility issues for the Administrative Law Judge to resolve. Finally, we reject petitioner'sclaim that evidence of his arrest was improperly considered because he was eventually acquittedof the criminal charge. An acquittal does not preclude a revocation of parole based upon thesame conduct (see People ex rel.Washington v Ekpe, 38 AD3d 1100, 1101 [2007], lv denied 9 NY3d 802[2007]).
Mercure, J.P., Rose, Kane, Stein and Garry, JJ., concur. Adjudged that the determination isconfirmed, without costs, and petition dismissed.