BOLDEN v. DENNISON

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

Matter of Furmond S. BOLDEN, Petitioner, v. Robert DENNISON, Chairman, New York State Division of Parole, Respondent.

Decided: April 28, 2006

PRESENT:  HURLBUTT, J.P., GORSKI, MARTOCHE, SMITH, AND GREEN, JJ. Wyoming County-Attica Legal Aid Bureau, Attica (Susan K. Jones of Counsel), for Petitioner. Eliot Spitzer, Attorney General, Albany (Owen Demuth of Counsel), for Respondent.

 Petitioner commenced this proceeding pursuant to CPLR article 78 seeking to annul the determination revoking his parole.   The determination that petitioner violated the conditions of his parole is supported by substantial evidence (see Matter of Fuller v. Berbary, 13 A.D.3d 1152, 787 N.Y.S.2d 532;  Matter of Boyd v. Travis, 6 A.D.3d 1237, 775 N.Y.S.2d 923) and, contrary to petitioner's contention, the Administrative Law Judge was entitled to credit the testimony of petitioner's wife over that of petitioner (see Matter of Poladian v. Travis, 8 A.D.3d 770, 778 N.Y.S.2d 232;  see also Matter of Courtney v. New York State Div. of Parole, 283 A.D.2d 707, 724 N.Y.S.2d 787).   Contrary to the further contention of petitioner, the violation of his curfew constitutes a violation of a “ substantial condition of his parole” (People ex rel. Korn v. New York State Div. of Parole, 274 A.D.2d 439, 440, 710 N.Y.S.2d 124;  see People v. Felder, 272 A.D.2d 884, 708 N.Y.S.2d 774, lv. denied 95 N.Y.2d 905, 716 N.Y.S.2d 646, 739 N.E.2d 1151).   Also contrary to the contention of petitioner, he was timely served with the notice of parole violation within the requisite three-day period (see Executive Law § 259-i[3][c][iii];  9 NYCRR 8005.3).  “Since the three-day period ended on a Sunday, service on the next succeeding business day was timely” (People ex rel. Frost v. Meloni, 124 A.D.2d 1032, 1032, 508 N.Y.S.2d 764, lv. denied 69 N.Y.2d 606, 514 N.Y.S.2d 1024, 507 N.E.2d 320).   The contention of petitioner that he was denied his right to counsel at the preliminary revocation hearing has been rendered moot by the determination revoking his parole following the final revocation hearing (see People ex rel. Wagner v. Travis, 273 A.D.2d 849, 850, 710 N.Y.S.2d 271). Finally, we reject petitioner's contention that the hold period of 36 months is excessive (see generally Matter of Smith v. Travis, 253 A.D.2d 955, 678 N.Y.S.2d 917).

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

MEMORANDUM: