IN RE: Allen MACK

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

IN RE: Allen MACK, Petitioner, v. George B. ALEXANDER, as Chair of the New York State Division of Parole, Respondent.

Decided: April 23, 2009

Before:  CARDONA, P.J., MERCURE, MALONE JR., KAVANAGH and McCARTHY, JJ. Allen Mack, New York City, petitioner pro se. Andrew M. Cuomo, Attorney General, Albany (Frank Brady of counsel), for respondent.

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 which revoked petitioner's parole.

 While serving a prison sentence for rape in the first degree, petitioner was released on parole in September 2005.   In December 2005, petitioner was charged with violating the terms of his parole in various respects.   There were initially six charges, and two more were subsequently added.   A hearing was ultimately held only on the eighth charge, which alleged that petitioner punched a correction officer while he was incarcerated awaiting a hearing on the parole revocation charges.   Following the hearing, an Administrative Law Judge sustained that charge and ordered that petitioner be held until the maximum expiration date of his sentence.   Following an unsuccessful administrative appeal, petitioner commenced this CPLR article 78 proceeding challenging various aspects of his parole revocation.1

 We confirm.   Initially, petitioner raises a variety of issues regarding the parole revocation charges and the preliminary hearing on those charges.   Petitioner made similar arguments in a separate habeas corpus proceeding that was ultimately dismissed (People ex rel. Mack v. Warden, Rikers Is. Correctional Facility, 55 A.D.3d 426, 864 N.Y.S.2d 918 [2008], lv. denied 11 N.Y.3d 715, 873 N.Y.S.2d 532, 901 N.E.2d 1287 [2009] ).   Petitioner, as a result, is precluded from relitigating both the issues raised by him in that proceeding and new arguments related to the charges and preliminary hearing (see Matter of Allen v. New York State Div. of Parole, 252 A.D.2d 691, 691-692, 675 N.Y.S.2d 409 [1998];  Matter of McAllister v. Division of Parole of N.Y. State, 186 A.D.2d 326, 327, 588 N.Y.S.2d 199 [1992] ).   Petitioner did not challenge the parole revocation itself in that CPLR article 70 proceeding and, indeed, could not have because his petition predated the completion of the revocation hearing and the revocation itself.   As such, petitioner's challenges to the revocation hearing and revocation are not precluded (see Matter of Tucci v. Ambach, 110 A.D.2d 1014, 1015, 488 N.Y.S.2d 306 [1985] ).

 Turning to the merits, “a determination to revoke parole will be confirmed if the procedural requirements were followed and there is evidence which, if credited, would support such determination” (Matter of Layne v. New York State Bd. of Parole, 256 A.D.2d 990, 992, 684 N.Y.S.2d 4 [1998], lv. dismissed 93 N.Y.2d 886, 689 N.Y.S.2d 427, 711 N.E.2d 641 [1999];  see Matter of Santiago v. Dennison, 45 A.D.3d 994, 995, 844 N.Y.S.2d 518 [2007] ).   Based upon our review of the record, substantial evidence to support the Board's determination exists in the correction officer's testimony that petitioner punched her.   Petitioner's testimony differed from that of the correction officer's, but “it is within the province of the Board to resolve issues of credibility, and to determine the relative weight to be assigned to the evidence” (Matter of Kovalsky v. New York State Div. of Parole, 30 A.D.3d 679, 680, 815 N.Y.S.2d 349 [2006] [citations omitted] ).

We have examined petitioner's remaining arguments and, to the extent they may properly be considered, find them to be without merit.

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

FOOTNOTES

1.   Petitioner has been released from prison due to the expiration of his sentence, but such does not render this proceeding moot, as “petitioner was found to have been a parole violator which may have lasting consequences despite the expiration of his sentence” (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 Moore v. Alexander, 53 A.D.3d 747, 748 n. 1, 861 N.Y.S.2d 473 [2008], lv. denied 11 N.Y.3d 710, 872 N.Y.S.2d 72, 900 N.E.2d 555 [2008];  Matter of Williams v. New York State Bd. of Parole, 225 A.D.2d 490, 491, 639 N.Y.S.2d 819 [1996], lv. denied 88 N.Y.2d 810, 649 N.Y.S.2d 377, 672 N.E.2d 603 [1996] ).

MALONE JR., J.

CARDONA, P.J., MERCURE, KAVANAGH and McCARTHY, JJ., concur.

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