PEEK v. DENNISON (2007)

 Petitioner commenced this proceeding pursuant to CPLR article 78 seeking review of the determination revoking his parole.   We reject petitioner's contention that respondent improperly denied him a preliminary hearing.   Contrary to the contention of petitioner, he was not entitled to a preliminary hearing pursuant to Executive Law § 259-i(3)(c)(i) inasmuch as he had been convicted upon his plea of guilty of a new crime (see id.;  People ex rel. Johnson v. Russi, 258 A.D.2d 346, 347, 685 N.Y.S.2d 661, appeal dismissed and lv. denied 93 N.Y.2d 945, 693 N.Y.S.2d 504, 715 N.E.2d 506).   To the extent that petitioner became eligible for a preliminary hearing when he withdrew his plea on March 10, 2004, he should have raised that issue at the first appearance for the final revocation hearing on March 18, 2004, at which time the Hearing Officer would have “had an opportunity of effectively” addressing the matter (CPL 470.05[2];  see generally People ex rel. Martinez v. New York State Bd. of Parole, 56 N.Y.2d 588, 590, 450 N.Y.S.2d 305, 435 N.E.2d 675).   His failure to do so renders this issue unpreserved for our review, and we further note that petitioner failed to exhaust his administrative remedies with respect to this issue (see generally Matter of Shapard v. Zon, 30 A.D.3d 1098, 815 N.Y.S.2d 852).   The determination that petitioner violated the conditions of his parole is supported by substantial evidence (see Matter of Mosley v. Dennison, 30 A.D.3d 975, 976, 816 N.Y.S.2d 789, lv. denied 7 N.Y.3d 712, 824 N.Y.S.2d 603, 857 N.E.2d 1134;  Matter of Westcott v. New York State Bd. of Parole, 256 A.D.2d 1179, 1180, 682 N.Y.S.2d 499).   Contrary to the contention of petitioner, he was not found guilty solely on the basis of inadmissible hearsay.   Rather, the inculpatory statements made by petitioner to his parole officer were admissible under the exception to the hearsay rule for party admissions (see People v. Thomas, 300 A.D.2d 1034, 1035, 752 N.Y.S.2d 482, lv. denied 99 N.Y.2d 633, 760 N.Y.S.2d 114, 790 N.E.2d 288).   Nor do we agree with petitioner that the 15-month time assessment against him was excessive in light of the mitigating evidence that he presented (see 9 NYCRR 8005.20[c][1][vi] ).   We have examined petitioner's remaining contentions and conclude that they are lacking in merit.

It is hereby ORDERED that the determination be and the same hereby is unanimously confirmed without costs and the petition is dismissed.

MEMORANDUM: