IN RE: NATHAN PECK

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Supreme Court, Appellate Division, Third Department, New York.

IN RE: NATHAN PECK, Petitioner, v. ANDREA W. EVANS, as Chair of the Division of Parole, et al., Respondents.

517545

Decided: June 5, 2014

Before:  Lahtinen, J.P., Stein, Garry and Rose, JJ. Holmberg, Galbraith & Miller, LLP, Ithaca (Luke Z. Fenchel of counsel), for petitioner. Eric T. Schneiderman, Attorney General, Albany (Jonathan D. Hitsous of counsel), for respondents.

MEMORANDUM AND JUDGMENT

Calendar Date:  April 23, 2014

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Tompkins County) to review a determination of the Board of Parole which revoked petitioner's parole.

In 2002, petitioner was convicted of rape in the first degree and was sentenced to five years in prison, to be followed by five years of postrelease supervision.   He was released to postrelease supervision in 2010 and was required to comply with certain conditions, including that he have no contact with minors and truthfully report his activities to his parole officer.   Petitioner's parole officer thereafter gave him permission to help construct a shed at the home of a coworker.   While performing that work, the coworker's four-year-old daughter emerged from the house and briefly approached petitioner and the coworker.   Petitioner was subsequently charged with violating numerous conditions of his parole, and the sole charge sustained by the Administrative Law Judge (hereinafter ALJ) was that petitioner failed to promptly disclose the limited contact he had with the coworker's child and other instances in which the coworker's children were present at the workplace.   The ALJ accordingly recommended, and the Board of Parole agreed, that petitioner's parole be revoked and that he be held until his maximum expiration date.   This CPLR article 78 proceeding ensued.1

“It is well established that a parole revocation decision will be upheld so long as ‘the procedural requirements were followed and there is evidence which, if credited, would support such determination’ ” (Matter of Davis v New York State Bd. of Parole, 81 AD3d 1020, 1021 [2011], quoting Matter of Layne v New York State Bd. of Parole, 256 A.D.2d 990, 992 [1998], lv dismissed 93 N.Y.2d 886 [1999];  see Matter of Toomer v Warden of Adirondack Corr. Facility, 97 AD3d 868, 868 [2012] ).   Notably, in order to warrant revocation, the alleged parole violation must be supported by a preponderance of the evidence (see Executive Law § 259–i[3][f] [viii];  Matter of Miller v. Russi, 225 A.D.2d 368, 369 [1996];  People ex rel. Wilt v. Meloni, 170 A.D.2d 989, 990 [1991], lv dismissed 77 N.Y.2d 973 [1991] ), which we find lacking in the record before us.

The ALJ dismissed the charge that petitioner had contact with a minor in view of the evidence that he had only incidental contact with his coworker's daughter during the construction of the shed, leaving petitioner's failure to promptly report this incident to his parole officer as the primary basis for the parole violation at issue.   The parole conditions did not clearly require petitioner to report such an insignificant encounter to his parole officer, however, and petitioner testified that he did not know that he needed to do so.   Further, while the coworker's children were occasionally present during lunch breaks at the work site, they largely remained outside the eating area and there was no showing that petitioner had any contact with the children during such times.   In view of this, petitioner's parole conditions did not plainly require him to report such information to his parole officer.   Accordingly, given the absence of probative evidence supporting the charge that petitioner failed to truthfully report his activities to his parole officer, the determination finding that he violated his parole in this regard must be annulled (see e.g. Matter of Mosley v. Dennison, 30 AD3d 975, 977 [2006], lv denied 7 NY3d 712 [2006];  Matter of Di Gioia v. Travis, 296 A.D.2d 632, 633 [2002];  Matter of Hilbourne v. Rodriguez, 155 A.D.2d 917 [1989] ).

Stein, Garry and Rose, JJ., concur.

ADJUDGED that the determination is annulled, with costs, and petition granted.

ENTER:

Robert D. Mayberger

Clerk of the Court

FOOTNOTES

1.  FN1. Although petitioner's sentence expired in December 2012 and he was released to the community on strict and intensive supervision and treatment after it was determined that he suffered from a mental abnormality under Mental Hygiene Law § 10.03(1), the instant proceeding is not moot given that the Board's finding that petitioner is a parole violator may have lasting consequences (see Matter of Biondo v New York State Bd. of Parole, 60 N.Y.2d 832, 834 [1983] ).

Lahtinen, J.P.

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