| People ex rel. Muhammad v Bradt |
| 2009 NY Slip Op 09341 [68 AD3d 1391] |
| December 17, 2009 |
| Appellate Division, Third Department |
| The People of the State of New York ex rel. Andre D. Muhammad,Appellant, v Mark Bradt, as Superintendent of Elimra Correctional Facility, et al.,Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Frank Brady of counsel), forrespondents.
Appeal from a judgment of the Supreme Court (O'Shea, J.), entered February 6, 2009 inChemung County, which denied petitioner's application for a writ of habeas corpus, in aproceeding pursuant to CPLR article 70, without a hearing.
In 1991, petitioner was convicted of attempted murder in the second degree, robbery in thefirst degree, criminal use of a firearm in the first degree, assault in the second degree andcriminal trespass in the first degree and was sentenced to an aggregate prison term of 11 to 23years, with a maximum expiration date of March 2, 2014. Petitioner was conditionally releasedto parole supervision in December 2006. In July 2007, petitioner was charged with violating theconditions of his parole after he allegedly admitted to both using cocaine on two separateoccasions and taking part in an illegal narcotics operation. Following a final parole revocationhearing in September 2007, petitioner's parole was revoked and a 36-month time assessment wasimposed. Petitioner thereafter commenced this habeas corpus proceeding challenging thedetermination of the Board of Parole. Supreme Court dismissed the petition and this appealensued.
A determination to revoke parole will not be disturbed if " 'the procedural requirements[*2]were followed and there is evidence which, if credited, wouldsupport such determination' " (Matter ofSimpson v Alexander, 63 AD3d 1495, 1496 [2009], quoting Matter of Rago v Alexander, 60 AD3d1123, 1123 [2009]). The record provides substantial evidence to support the Board'sdetermination in the form of petitioner's signed acknowledgments, dated June 27, 2007 and July11, 2007, that he used cocaine, as well as the testimony of petitioner's parole officer and twofellow officers that, on the latter date, petitioner stated that his positive test was the result of hispackaging drugs while in the employ of a drug dealer (see Matter of Ciccarelli v New York State Div. of Parole, 11 AD3d843, 844 [2004]). To the extent that petitioner testified that he signed the forms merely toacknowledge that the tests had shown a positive result, and that the other officers were notpresent when he allegedly admitted to his drug dealing activity, this presented an issue ofcredibility for the Board to resolve (see Matter of Simpson v Alexander, 63 AD3d at1496; Matter of Mack v Alexander,61 AD3d 1222, 1223 [2009]). While petitioner also seeks to challenge the length of his timeassessment, habeas corpus relief is not appropriate because, even if his contentions have merit,he would not be entitled to immediate release from prison (see People ex rel. Malik v State ofNew York, 58 AD3d 1042, 1043 [2009], appeal dismissed 13 NY3d 815 [2009]; People ex rel. Black v New York State Bd.of Parole, 54 AD3d 1077, 1078 [2008]).
Petitioner's remaining contentions have been examined and determined to be without merit.
Mercure, J.P., Rose, Malone Jr., Kavanagh and McCarthy, JJ., concur. Ordered that thejudgment is affirmed, without costs.