In this writ of habeas corpus the court has carefully examined the following documents: Exhibit A — Crime and Sentence Information; Exhibit B — Violation of Release Report — Charge Sheet; Exhibit C — Violation of Release Report — Case Summary; Exhibit D — Special Conditions of Release to Community Supervision; Exhibit E — Transcript of Preliminary Hearing — July 5, 2022; Exhibit F — Transcript of Final Revocation Hearing — August 18, 2022; and Exhibit G — Final Parole Revocation Decision Notice, dated September 9, 2022; together with each of the Relator’s (hereinafter Petitioner’s) submissions and Respondents’ submissions. DECISION and ORDER BACKGROUND AND PROCEDURAL HISTORY In 2002, Petitioner was convicted in Onondaga County Court on criminal charges of Attempted Murder 1st Degree, Criminal Possession of a Weapon 2nd Degree, and Criminal Possession of a Weapon 3rd Degree and sentenced to an aggregate indeterminate sentence of Eighteen years to Life. (Exhibit A, C) Petitioner was conditionally released to parole supervision on January 3, 2022. (Exhibit B, C) Petitioner was given Special Conditions to follow, which included a Special Condition to have no contact with Quoshinna Mack. (Exhibit D, p. 12) Parole Warrant #845481, dated June 29, 2022, charged Petitioner with thirteen (13) violations of the terms of his release to parole supervision, including: failure to remain in his approved residence during curfew hours; contacting Ms. Mack without permission; possession of a dangerous weapon, which resulted in arrest for Criminal Possession of a Weapon 4th Degree; unlawfully entering the apartment of Ms. Mack, resulting in arrest for Burglary 2nd Degree; damaging property while in Ms. Mack’s apartment, resulting in arrest for Criminal Mischief 2nd Degree; and threatening Ms. Mack with a knife, which resulted in arrest for Menacing 2nd Degree. (Exhibit B) At a contested Final Parole Revocation Hearing completed on August 18, 2022, Petitioner was found guilty of behavior violating provisions of law which provide for a penalty of imprisonment. The core of Petitioner’s argument is (1) that the Petitioner should have been deemed a technical violator rather than a non-technical violator; and (2) the Hearing Officer found him guilty of a violation in spite of a lack of evidence. These are addressed ad seriatim. This Court finds that Petitioner’s claim is without merit. The Parole Board (hereinafter Parole) may use the behavior that, if charged, would constitute the commission of a felony or misdemeanor. Charges or a finding of guilt are not required. It is well established that an alleged parole violator who is not criminally convicted does not preclude a parole revocation for the same conduct. Young v. Dennison, 29 AD3d 1194, 1195 (3d Dept. 2006); Davidson v. New York State Division of Parole, 34 AD3d 998,824 N.Y.S.2d 466 (3d Dept. 2006) Iv. den. 8 N.Y.3d 803,838 N.Y.S.2d 699 (2007); Simpson v. Alexander, 63 AD3d 1495, 882 N.Y.S.2d 342 (3d Dept. 2009). In the instant case, there was no disposition of criminal charges through an acquittal or adjournment in contemplation of dismissal prior to the final parole revocation determination. 9 NYCRR §8005. 1 9(f) provides that “conduct that formed the basis of a criminal arrest shall not form a basis of a sustained parole violation if a court has, prior to the final hearing, adjudicated that criminal matter with an acquittal, adjournment in contemplation of dismissal”. When there are criminal charges that resolve by acquittal or adjournment in contemplation of dismissal, those charges cannot thereafter be the basis of a nontechnical violation. But that is not the case in this matter. In the absence of an adjudication of criminal charges, as is the case here, Parole may use behavior that, if charged, would constitute the commission of a felony or misdemeanor. Charges or a guilty finding are not required. The Petition must be dismissed, as the Petitioner is a non-technical parole violator. With respect to the second issue raised, the alleged parole violations are supported by a preponderance of the evidence. A review of the transcript of the hearing provides that the Hearing Officer considered testimony given by Parole Officer Stacey LaRose, Quoshinna Mack, and Syracuse Police Officer Zeina Aki; a Notice of Violation and Violation of Release Report; Conditions of Release and Special Conditions of Release; photographs taken by Parole Officer LaRose; and a photograph. (Exhibit G). The Court cannot make its own assessments of witness credibility and, therefore, this review is limited to discerning whether the procedural rules were followed and whether there was any evidence that, if believed, would support the determination to revoke parole. Lafferty v. Annucci, 148 AD3d 1628, 50 N.Y.S.3d 221 (4th Dept. 2017); Riley v. Alexander, 139 AD3d 1206, 31 N.Y.S.3d 318 (3d Dept. 2016); Toomer v. Warden of Adirondack Correctional Facility, 97 AD3d 868, 947 N.Y.S.2d 684 (3d Dept. 2012); Moore v. Stanford, 140 AD3d 1438, 33 N.Y.S.3d, 591 (3d Dept. 2016); McQueen v. New York State Board of Parole, 118 AD3d 1238, 989 N.Y.S.2d 150 (3d Dept. 2014); Graham v. Dennison. 46 AD3d 1467, 848 N.Y.S.2d 804 (4th Dept. 2007). This judicial review is narrowly circumscribed and is limited to merely ascertaining whether there exists substantial evidence to support the decision. Bratton v. New York State Board of Parole, 23 AD3d 879, 804 N.Y.S.2d 138 (3d Dept. 2005); Kovalsky v. New York State Division of Parole, 30 AD3d 679, 815 N.Y.S.2d 349 (3d Dept. 2006); Santiago v. Dennison, 45 AD3d 994, 844 N.Y.S.2d 518 (3d Dept. 2007); Graham v. Dennison, 46 AD3d 1467, 848 N.Y.S.2d 804 (4th Dept. 2007); Tanner v. New York State Division of Parole, 60 AD3d 1225, 874 N.Y.S.2d 396 (3d Dept. 2009); Sellers v. Stanford, 144 AD3d 691, 40 N.Y.S.3d 501 (2nd Dept. 2016). Based upon the foregoing analysis the Court concluded that the hearing officer’s determination is supported by a preponderance of the evidence and the Petition is denied in its entirety. The original of this Decision and Order has been filed by the Court. Counsel for Respondents is hereby directed to serve a copy of the Decision and Order with notice of entry in accordance with CPLR 5513. It is SO ORDERED. Dated: January 25, 2024
