People of the State of New York ex rel. Dominic Larocco v Warden

2011 NY Slip Op 02130

Decided on March 24, 2011

Appellate Division, First Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 24, 2011
Gonzalez, P.J., Catterson, Richter, Abdus-Salaam, Román, JJ.
4623 341142/09






Steven N. Feinman, White Plains, for petitioner.
Eric T. Schneiderman, Attorney General, New York (David
Lawrence III of counsel), for New York State Division of
Parole, respondent.

Determination of respondent State Division of Parole, dated February 13, 2009, which revoked petitioner's parole and imposed a 24-month time assessment, unanimously confirmed, the petition denied and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, Bronx County [Robert A. Neary, J.], entered on or about May 10, 2010), dismissed, without costs.

The determination that petitioner violated his parole by stalking and harassing the 17-year-old victim was supported by substantial evidence (see generally People ex rel. Vega v Smith, 66 NY2d 130, 139 [1985]). The hearing testimony established that the victim was frightened, annoyed and alarmed by petitioner's repeated conduct over a period of months, and petitioner's intent could be inferred from the surrounding circumstances (see Matter of Reiss v Reiss, 221 AD2d 280 [1995], lv denied 89 NY2d 801 [1996]). Respondent's decision to impose a 24-month time assessment rather than accept the administrative law judge's (ALJ) recommendation of an 18-month assessment was a provident exercise of discretion. The recommendation of the ALJ is advisory and not binding on respondent (see People ex rel. Coleman v Smith, 75 AD2d 706, 707 [1980], lv denied 50 NY2d 804 [1980]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 24, 2011

CLERK