People of the State of New York ex rel. Ciaran Foley, Esq., on behalf of Caron Mapp, Petitioner, v. STANLEY RICHARDS (2026)

Petitioner Caron Mapp was detained by respondent Department of Corrections and Community Supervision (DOCCS) for allegedly violating specified conditions of release during his community supervision. In this proceeding, petitioner challenges the legality of his detention by way of a writ of habeas corpus, specifically contesting whether the determination at his preliminary parole revocation hearing was legally and procedurally proper. For the reasons stated herein, the petition is DENIED, and the proceeding is DISMISSED.

A preliminary parole revocation hearing was held on June 22, 2026. At the hearing, DOCCS proceeded on charge 5, which alleged a violation of rule 8 of the conditions of release. Rule 8, as applicable, prohibits conduct that violates a law punishable by imprisonment. The charge alleged that on June 16, 2026, petitioner struck another individual with closed fists, resulting in pain and bruising. Petitioner pleaded not guilty.

The parole revocation specialist representing DOCCS called a police officer to testify. Police officer Crisantos (Officer Crisantos) testified that he arrested petitioner on June 16, 2026, for assaulting another individual in Brooklyn central booking. Officer Crisantos said he did not witness the incident but viewed surveillance footage of it approximately two hours later. When the parole revocation specialist asked Officer Crisantos to describe the incident, petitioner's attorney objected on hearsay, confrontation, and best-evidence grounds. The supervising administrative law judge overruled the objection but directed Officer Crisantos to describe what he personally observed in the footage. Officer Crisantos said that the footage showed the complaining witness sitting down on a bench when petitioner approached and punched him in the face with a closed fist. Officer Crisantos then identified petitioner at the hearing.

When asked how he knew that petitioner was the person depicted in the footage, Officer Crisantos said that a desk sergeant, Sergeant Ferrer, had identified petitioner. Petitioner's attorney objected on hearsay and confrontation grounds, but the supervising administrative law judge overruled the objection. Officer Crisantos further testified that he recorded the surveillance footage on his department-issued cell phone. The parole revocation specialist attempted to introduce that recording into evidence. After brief voir dire and an objection from petitioner's attorney, the supervising administrative law judge sustained the objection and excluded the recording from evidence. During cross-examination, Officer Crisantos confirmed that Sergeant Ferrer had initially identified petitioner in the surveillance footage. Officer Crisantos also said that two assailants were observed in the footage and that the second assailant had been arrested.

Officer Crisantos testified that the complaining witness later went to the hospital and received stitches. Petitioner's attorney objected on hearsay and confrontation grounds, but the supervising administrative law judge overruled the objection. During cross-examination, Officer Crisantos said that he did not speak with the complaining witness and conceded that he could not recall observing any specific injuries. On redirect examination, Officer Crisantos clarified that his partner, police officer Arviano (Officer Arviano), had told him that the complaining witness needed stitches.

At the end of the hearing, the supervising administrative law judge expressly credited Officer Crisantos's testimony and found by a preponderance of the evidence that petitioner violated a condition of release in an important respect. Petitioner now challenges that determination.

The standard of review in a habeas proceeding that challenges a preliminary hearing determination requires the court to assess both the sufficiency of the evidence supporting the Hearing Officer's determination and whether the necessary procedural rules were observed. Specifically, the court is limited to reviewing "whether the evidence was sufficient to support the Hearing Officer's determination and, having established that it was, deciding whether the required procedural rules were followed" (People ex rel. Watson v Commissioner of NY City Dept. of Correction, 149 AD2d 120, 125 [1st Dept 1989]).

The standard of proof at a preliminary hearing is "a preponderance of the evidence to believe that the releasee has violated one or more conditions of his or her community supervision in an important respect" (Executive Law § 259-i [3] [c] [iv]).¹ A preponderance requires evidence "of such weight as to produce a reasonable belief in the truth of the facts asserted" (Jarrett v Madifari, 67 AD2d 396, 404 [1st Dept 1979] [citation modified]).

When reviewing sufficiency, the court may not substitute its own assessment of witness credibility for those made by the hearing officer (People ex rel. Davis v Warden of Rikers Is. Correctional Facility, 290 AD2d 323, 323 [1st Dept 2002] [upholding deference to the hearing officer's credibility determinations]). If there is conflicting evidence, the hearing officer may "credit one version of the facts over another" (People ex rel. Walker v Hammock, 78 AD2d 369, 372 [4th Dept 1981]; accord Matter of Alexander v New York State Div. of Parole, 236 AD2d 761, 762 [3d Dept 1997] [holding that petitioner's contrary testimony "raised a question of credibility which was within the province of the Hearing Officer to resolve"]).

Under the procedural rules governing the hearing, the "formal rules of evidence . . . need not be followed, except that the rules of privilege recognized by law shall be observed" (9 NYCRR 8005.2 [a]). Hearsay is thus admissible (Matter of Williams v New York State Bd. of Parole, 225 AD2d 490, 491 [1st Dept 1996]). Nevertheless, procedural safeguards remain in place to protect the releasee's rights. Specifically, a releasee is afforded "due process and statutory rights to confront adverse witnesses whose statements are offered at a parole revocation hearing" (People ex rel. McGee v Walters, 62 NY2d 317, 319 [1984]; Executive Law § 259-i [3] [f] [v]), including at a preliminary parole revocation hearing (Executive Law § 259-i [3] [c] [iii]; People ex rel. Rosenfeld v Sposato, 87 AD3d 665, 666 [2d Dept 2011]). These safeguards require that, although hearsay evidence can be admitted, a hearing officer must balance the general preference for live testimony with the need for reliable evidence and may dispense with the right to confront adverse witnesses only upon a specific showing of good cause. This ensures that the fundamental fairness of the proceeding is preserved, even in the absence of strict evidentiary rules.

A hearing officer may dispense with confrontation of an absent declarant only upon a "specific finding of good cause" (McGee, 62 NY2d at 319). Good cause requires consideration of the general preference for confrontation, the nature of the evidence at issue, the potential utility of cross-examination, and the burden that producing the declarant would impose on the State (id. at 319-320). The balance of factors may favor dispensing with confrontation where the evidence is "merely cumulative or its substance is objective factual material compiled under circumstances indicating it to be inherently reliable" (id. at 322).

On a preserved confrontation claim, due process does not require production of an absent declarant whose testimony is unnecessary to prove the violation. It would "merely have been cumulative and corroborative" (People ex rel. Lee v New York State Bd. of Parole, 165 AD2d 959 [3d Dept 1990]; see McGee, 62 NY2d at 322). Even where unconfronted hearsay is improperly admitted, habeas relief is unwarranted if the "remaining evidence" is sufficient to prove the violation (People ex rel. Peters v Walker, 262 AD2d 1025 [4th Dept 1999]). In contrast, if no specific finding of good cause is made to dispense with confrontation of the declarant whose hearsay "comprised the only evidence" proving the charged conduct, then "a due process violation must be presumed" (McGee, 62 NY2d at 323).

Petitioner's attorney objected to Officer Crisantos' description of the surveillance footage on confrontation, hearsay, and best-evidence grounds. In resolving these objections, the supervising administrative law judge directed Officer Crisantos to testify solely as to his own observations of the footage. As clarified by the courts, when a witness describes what they personally observe in a video recording, such testimony does not constitute hearsay, because it is not an out-of-court statement made for the truth of its contents (see People v Jones, 77 Misc 3d 5, 9 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]). Accordingly, petitioner's right to confrontation was not implicated, as the testimony did not rely on statements from absent declarants but rather on the officer's firsthand observations (see McGee, 62 NY2d at 319). Additionally, because parole revocation hearings are not subject to the formal rules of evidence, including strict adherence to the best-evidence rule, a witness may testify regarding the contents of a recording if proper under the circumstances (cf. Matter of Flanagan v New York State Tax Commn., 154 AD2d 758, 758 [3d Dept 1989]). Therefore, the supervising administrative law judge properly allowed and considered Officer Crisantos' narrative of what the surveillance footage depicted of the relevant incident.

Petitioner's attorney also raised confrontation and hearsay objections to Officer Crisantos' testimony that Sergeant Ferrer had identified petitioner in the surveillance footage and that Officer Arviano had told him about the complainant receiving stitches. The supervising administrative law judge overruled both objections. Assuming without deciding that those statements were admitted in error, habeas relief is unwarranted if the "remaining evidence" is sufficient (Peters, 262 AD2d at 1025).

As for the identification of petitioner, even when Sergeant Ferrer's out-of-court identification is excluded from consideration, the remaining evidence at the hearing independently supports the conclusion that petitioner was one of the assailants (see Peters, 262 AD2d at 1025). Specifically, Officer Crisantos testified that after reviewing the surveillance footage, he recognized and identified petitioner in person at the hearing, drawing a clear distinction between petitioner and the second assailant visible in the footage. Although cross-examination by petitioner's attorney revealed that Officer Crisantos had originally relied on Sergeant Ferrer's identification to orient himself to petitioner in the footage, his in-court testimony ultimately reflected his own observations and direct recognition of petitioner as the first assailant. The supervising administrative law judge, aware of this sequence and of the attorney's efforts to challenge the identification, made an explicit finding to credit Officer Crisantos' testimony (see Davis, 290 AD2d at 323; Matter of Kovalsky v New York State Div. of Parole, 30 AD3d 679, 680 [3d Dept 2006] [treating disputed identification evidence as presenting issues of weight and credibility]). Thus, the court was presented not merely with uncorroborated hearsay but with direct testimony from the footage regarding petitioner's actions. On this record, the supervising administrative law judge could reasonably determine that petitioner was depicted as the first assailant in the surveillance recording based on the totality of the evidence presented and the credibility assessments made at the hearing.

The remaining evidence also established that petitioner committed a rule 8 violation. Rule 8 prohibits behavior that violates a law punishable by imprisonment (9 NYCRR 8003.2 [8]). The conduct described here constituted at least attempted assault in the third degree (Penal Law §§ 110.00, 120.00 [1]). Attempted assault in the third degree requires "proof that defendant 'engage[d] in conduct which tends to effect the commission of [assault],' with the 'intent to cause physical injury to another' " (People v Repanti, 24 NY3d 706, 710 [2015], quoting Penal Law §§ 110.00, 120.00 [1]). That offense "does not require a showing of 'physical injury' " (People v Whatts, 116 AD3d 456, 462 [1st Dept 2014]). Officer Crisantos testified that petitioner approached the complaining witness and punched him one time in the face with a closed fist. A punch to the face may support an inference of intent to cause physical injury (Matter of Edward H., 61 AD3d 473, 473 [1st Dept 2009]). The testimony was thus sufficient to support a finding of attempted assault in the third degree. Although petitioner could argue that the presence of a second assailant or the lack of direct evidence of completed injury undermines the sufficiency of proof, the case law establishes that even if another individual caused the complaining witness's injuries, petitioner's own conduct independently constitutes attempted assault. Furthermore, to the extent petitioner contends that the noticed allegations of pain and bruising required proof of completed assault rather than an attempt, existing authority holds that notice alleging completed harm is broad enough to encompass liability for an attempt (see People ex rel. Washington v Ekpe, 38 AD3d 1100 [3d Dept 2007] [upholding a finding of attempted rape where the notice alleged conduct constituting rape]). Thus, any counterargument regarding sufficiency or notice does not defeat the finding of a rule 8 violation.

Attempted assault in the third degree is a class B misdemeanor (Penal Law §§ 110.05 [8], 120.00), punishable by up to three months' imprisonment (Penal Law § 70.15 [2]). Petitioner's conduct therefore constituted a violation of rule 8 (9 NYCRR 8003.2 [8]). Because the remaining evidence is sufficient to support the supervising administrative law judge's determination, petitioner is not entitled to habeas relief (Peters, 262 AD2d at 1025; Watson, 149 AD2d at 125).

Accordingly, it is hereby

ORDERED and ADJUDGED that the petition for a writ of habeas corpus is DENIED, and, as a result, this habeas corpus proceeding is hereby DISMISSED in its entirety; it is further

ORDERED and ADJUDGED that petitioner is REMANDED to the custody of respondent and shall be detained pursuant to the securing order issued by the recognizance court in connection with parole warrant No. 837369.

Dated: August 24, 2026

Bronx, New York

HON. VERENA C. POWELL, A.J.S.C.

FOOTNOTES

1.   The statute contains an internal tension as to the standard of proof at a preliminary hearing. The 2021 amendments altered the preliminary-hearing framework by changing subparagraph (iv) to provide that the standard of proof at a preliminary hearing is "a preponderance of the evidence" and by adding subparagraph (ix), which directs the matter to a final hearing if the hearing officer finds "by a preponderance of the evidence" that a violation was committed in an important respect (Executive Law § 259-i [3] [c] [iv], [ix], as amended and added by L 2021, ch 427, § 5). Other provisions, however, retained the older probable-cause terminology for a preliminary hearing (Executive Law § 259-i [3] [c] [vi]-[viii]; [d]). The implementing regulations treat the standard at the preliminary hearing as a preponderance of the evidence (9 NYCRR 8005.7 [d]-[g]). Read together, the statute and the implementing regulations support the conclusion that the governing standard at a preliminary hearing is a preponderance of the evidence.

Verena C. Powell, J.