WESTCOTT v. NEW YORK STATE BOARD OF PAROLE

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

Matter of Louis WESTCOTT, Petitioner, v. NEW YORK STATE BOARD OF PAROLE, et al., Respondents.

Decided: December 31, 1998

Present:  PINE, J.P., HAYES, WISNER, PIGOTT and BOEHM, JJ. Louis Westcott, Sonyea, Pro Se. Dennis C. Vacco, Attorney General, Wayne Benjamin by Julie Sheridan, Albany, for Respondent.

 Petitioner appeals from a final parole revocation determination by respondent New York State Board of Parole (Board of Parole).   Petitioner's challenge to the finding of probable cause at the preliminary parole revocation hearing is rendered moot by the final parole revocation determination (see, People ex rel. Chavis v. McCoy, 236 A.D.2d 892, 653 N.Y.S.2d 752;  Matter of Collins v. Rodriguez, 138 A.D.2d 809, 525 N.Y.S.2d 728).   Although petitioner has statutory and due process rights to confront and cross-examine adverse witnesses (see, Executive Law § 259-i[3] [f] [v];   Morrissey v. Brewer, 408 U.S. 471, 488-489, 92 S.Ct. 2593, 33 L.Ed.2d 484;   People ex rel. McGee v. Walters, 62 N.Y.2d 317, 319, 476 N.Y.S.2d 803, 465 N.E.2d 342), petitioner did not object to the admission of hearsay statements of two witnesses, and failed to seek cross-examination of those witnesses.   Thus, he waived his present argument that he was denied the opportunity to cross-examine those witnesses (see, People ex rel. Hall v. Dufrain, 190 A.D.2d 917, 593 N.Y.S.2d 1020).   Based upon the testimony of the witnesses, including petitioner, as well as petitioner's plea of guilty with an explanation, we conclude that the determination of the Board of Parole that petitioner violated the conditions of his parole is supported by substantial evidence (see, Matter of Castro v. Russi, 216 A.D.2d 968, 628 N.Y.S.2d 926, lv. denied 86 N.Y.2d 711, 635 N.Y.S.2d 948, 659 N.E.2d 771).

Determination unanimously confirmed without costs and petition dismissed.

MEMORANDUM: