IN RE: JOHN HORACE (2015)

MEMORANDUM AND ORDER

Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Wyoming County [Michael M. Mohun, A.J.], entered April 24, 2015) to review a determination of respondent.  The determination revoked the parole of petitioner.

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

Memorandum:  Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination revoking his parole release and remanding him to serve another 42 months of incarceration.  We note at the outset that Supreme Court erred in transferring the matter to this Court inasmuch as this proceeding does not involve a substantial evidence issue (see CPLR 7803[4];  7804[g] ).  “A substantial evidence issue ‘arises only where a quasi-judicial hearing has been held and evidence [has been] taken pursuant to law’ ․ and [, here,] no hearing was held” (Matter of Scherz v New York State Dept. of Health, 93 AD3d 1302, 1303).  We nevertheless review the merits of the petition in the interest of judicial economy (see Scherz, 93 AD3d at 1303;  Matter of Moore v. Alexander, 53 AD3d 747, 748 n 2, lv denied 11 NY3d 710).

Contrary to petitioner's contention, we conclude that his plea to the parole violations was knowing, voluntary and intelligent inasmuch as “[p]etitioner was represented by counsel ․ and the Administrative Law Judge explained to him the substance of the plea agreement, which he indicated that he understood” (Matter of James v Chairman of the N.Y. State Bd. of Parole, 106 AD3d 1300, 1300;  see Matter of Steele v New York State Div. of Parole, 123 AD3d 1170, 1170).

Contrary to petitioner's final contention, the time assessment of 42 months is not unduly harsh and severe.  For a category 1 violator, such as petitioner (see 9 NYCRR 8005.20[c][1][iv] ), the minimum time assessment must be either 15 months or a hold to the “maximum expiration of the sentence, whichever is less” (9 NYCRR 8005.20[c][1] ).  “The Executive Law does not place an outer limit on the length of that assessment, and [respondent's] determination may not be modified upon judicial review ‘in the absence of impropriety’ “ (Matter of Bell v. Lemons, 78 AD3d 1393, 1393–1394;  see Executive Law § 259–i[3][f][x];  [g];  Matter of Rosa v. Fischer, 108 AD3d 1227, 1228, lv denied 22 NY3d 855).  Under the circumstances of this case, including the nature of the underlying charges as well as the severity and multitude of violations, we conclude that there was no impropriety here and, thus, there is no reason to modify the 42–month time assessment (see Matter of Krouth v New York State Bd. of Parole, 184 A.D.2d 1012, 1013, lv denied 80 N.Y.2d 758).

Frances E. Cafarell

Clerk of the Court