IN RE: Derrick FAULKNER

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

IN RE: Derrick FAULKNER, Petitioner, v. NEW YORK STATE DIVISION OF PAROLE, Respondent.

Decided: January 26, 2006

Before:  SPAIN, J.P., MUGGLIN, ROSE, LAHTINEN and KANE, JJ. Derrick Faulkner, New York City, petitioner pro se. Eliot Spitzer, Attorney General, Albany (William E. Storrs 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 revoking petitioner's parole.

In April 2002, petitioner was released to parole supervision, a condition of which was that he not violate the law or behave in a manner that threatens the safety or well-being of himself or others.   In February 2004, petitioner was charged with violating this condition after he was caught leaving a Home Depot store with merchandise he had not paid for.   Following a final revocation hearing, he was found guilty of the charges, his parole was revoked and he was placed on a 12-month hold.   The determination was upheld on administrative appeal, resulting in this CPLR article 78 proceeding.

 Initially, we note that our review of the determination at issue “is limited to an examination of the record to ascertain whether there exists substantial evidence to support it” (Matter of Bratton v. New York State Bd. of Parole, 23 A.D.3d 879, 879, 804 N.Y.S.2d 138 [2005];  see Matter of Brew v. New York State Div. of Parole, 22 A.D.3d 930, 930, 802 N.Y.S.2d 522 [2005] ).   The loss prevention specialist of the Home Depot store testified at the final revocation hearing that he witnessed petitioner conceal items in a box on his cart and check out without paying for them.   He stated that he confronted petitioner after petitioner passed the guards and was exiting the store.   In our view, this testimony amply supports the administrative determination. Petitioner's testimony that he was away from his cart during checkout and thought the cashier had charged him for the items presented a credibility issue for the Board of Parole to resolve (see Matter of Williams v. New York State Div. of Parole, 23 A.D.3d 800, 800-801, 803 N.Y.S.2d 320 [2005] ).   We have considered petitioner's other contentions and find them to be unavailing.

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

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