IN RE: Curtis L. GAINEY (2018)

MEMORANDUM AND JUDGMENT

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of the Board of Parole revoking petitioner's parole and imposing a 24–month hold.

In 2001, petitioner was convicted of 18 counts of incest (People v. Gainey, 4 A.D.3d 851, 851, 771 N.Y.S.2d 404 [2004], lv denied 2 N.Y.3d 799, 781 N.Y.S.2d 298, 814 N.E.2d 470 [2004] ).  Petitioner was serving an aggregate prison sentence of 10 to 20 years and was released to parole supervision in March 2014.  In 2015, petitioner was charged with violating the conditions of his release based on allegations that included that he had failed to pay for and participate in required sex offender treatment.  After a hearing, an Administrative Law Judge sustained the charges against petitioner, finding that he had not made significant efforts to participate in sex offender treatment, revoked his parole and imposed a 24–month hold.  The Board of Parole upheld the decision, and petitioner commenced this CPLR article 78 proceeding seeking to annul the determination.

Absent a procedural error, a revocation of parole will be upheld if it is supported by substantial evidence (see Matter of Riley v. Alexander, 139 A.D.3d 1206, 1207, 31 N.Y.S.3d 318 [2016];  Matter of Williams v. Evans, 129 A.D.3d 1408, 1409, 11 N.Y.S.3d 747 [2015] ).  Here, the record contains evidence establishing that petitioner was financially able to pay for sex offender treatment and chose not to do so despite parole requirements that he participate in and pay for such treatment.  Moreover, the record establishes both that petitioner was provided with opportunities to establish that he was entitled to a reduced fee for such treatment and that he did not take advantage of those opportunities.  This proof, along with the proof that petitioner refused to agree to a payment plan or pay his arrears, provides substantial evidence supporting the determination that petitioner violated the conditions of his parole release (see Matter of Fincher v. Executive Bd., N.Y. State Div. of Parole, 151 A.D.3d 1493, 1494, 57 N.Y.S.3d 724 [2017];  Matter of Toomer v. Warden of Adirondack Corr. Facility, 97 A.D.3d 868, 869, 947 N.Y.S.2d 684 [2012] ).  Petitioner's testimony contradicting some of the aforementioned evidence and to the effect that he was indigent, despite his pension and workers' compensation benefits, presented a credibility determination for the Board to resolve (see Matter of Lewis v. Alexander, 68 A.D.3d 1415, 1415, 890 N.Y.S.2d 730 [2009];  Matter of Simpson v. Alexander, 63 A.D.3d 1495, 1496, 882 N.Y.S.2d 342 [2009] ).  Finally, petitioner's challenge to the length of his time assessment is moot given that, during the pendency of this proceeding, he was rereleased to parole supervision (see Matter of Adams v. New York State Div. of Parole, 89 A.D.3d 1267, 1268, 932 N.Y.S.2d 388 [2011];  Matter of Horton v. Travis, 18 A.D.3d 922, 923, 793 N.Y.S.2d 778 [2005] ).¹

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.

FOOTNOTES

1.   The revocation challenge is not moot, however, given that “petitioner was found to have been a parole violator[,] which may have lasting consequences” (Matter of Biondo v. New York State Bd. of Parole, 60 N.Y.2d 832, 834, 470 N.Y.S.2d 130, 458 N.E.2d 371 [1983];  see Matter of Mack v. Alexander, 61 AD3d 1222, 1222, 877 N.Y.S.2d 507 [2009] ).

Egan Jr., J.P., Lynch, Mulvey, Aarons and Pritzker, JJ., concur.