SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

249 

TP 16-01478 

PRESENT: SMITH, J.P., CARNI, NEMOYER, CURRAN, AND TROUTMAN, JJ. 

 

IN THE MATTER OF MICHAEL LAFFERTY, PETITIONER, 

V MEMORANDUM AND ORDER

ANTHONY ANNUCCI, ACTING COMMISSIONER, NEW YORK 

STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY 

SUPERVISION, RESPONDENT. 

WYOMING COUNTY-ATTICA LEGAL AID BUREAU, WARSAW (LEAH R. NOWOTARSKI OF

COUNSEL), FOR PETITIONER. 

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (FRANK BRADY OF

COUNSEL), FOR RESPONDENT. 

 

Proceeding pursuant to CPLR article 78 (transferred to the

Appellate Division of the Supreme Court in the Fourth Judicial

Department by order of the Supreme Court, Wyoming County [Michael M.

Mohun, A.J.], entered August 26, 2016) to review a determination of

respondent. The determination revoked petitioner’s parole. 

It is hereby ORDERED that the determination is unanimously

confirmed without costs and the petition is dismissed. 

Memorandum: Petitioner commenced this CPLR article 78 proceeding

seeking to annul the determination of the Administrative Law Judge

(ALJ) revoking his release to parole supervision. We reject

petitioner’s contention that Supreme Court improperly transferred this

matter to this Court. Preliminarily, we note that petitioner confuses

the regulations applicable to an administrative appeal to the Board of

Parole pursuant to 9 NYCRR part 8006 with the rules that apply to a

CPLR article 78 proceeding. To the extent that petitioner challenges

the sufficiency of the evidence presented during the contested final

parole revocation hearing regarding charge 5, we agree with respondent

that the court properly transferred the matter to this Court.

Turning to petitioner’s contention regarding the sufficiency of

the evidence presented in support of charge 5, which alleges that

petitioner intentionally and knowingly possessed a sexual performance

by a child less than 16 years of age, we conclude that petitioner

failed to preserve his contention that there is insufficient evidence

that the children depicted in the images of child pornography found on

petitioner’s computer were under the age of 16. Indeed, defense

counsel conceded that the images found on petitioner’s computer and

admitted in evidence “certainly would constitute child pornography. 
-2- 249 

TP 16-01478 

We’re not going to quibble over that. The images are disgusting. 

There is no question about that” (see Matter of Washington v Annucci,

144 AD3d 1541, 1542; Matter of Kirk v Hammock, 119 AD2d 851, 853-854;

see also Matter of McCollum v Fischer, 61 AD3d 1194, 1194, lv denied

13 NY3d 703). 

In any event, “[i]t is well settled that a determination to

revoke parole will be confirmed if the procedural requirements were

followed and there is evidence [that], if credited, would support such

determination” (Matter of Rosa v Fischer, 108 AD3d 1227, 1228, lv

denied 22 NY3d 855 [internal quotation marks omitted]). We conclude

that the ALJ’s determination that petitioner intentionally and

knowingly possessed a sexual performance by a child less than 16 years

of age is supported by substantial evidence, namely, 12 images of

child pornography found on petitioner’s computer, as well as the

testimony of law enforcement officers who found 60 images of child

pornography on petitioner’s computer.

We reject petitioner’s further contention that the 48-month time

assessment imposed against him is excessive. “The Executive Law does

not place an outer limit on the length of that assessment, and the

[ALJ’s] determination may not be modified upon judicial review in the

absence of impropriety” (Rosa, 108 AD3d at 1228 [internal quotation

marks omitted]; see Matter of Bell v Lemons, 78 AD3d 1393, 1393-1394). 

Here, the ALJ considered the appropriate factors and, “given

petitioner’s violent criminal record and his . . . disregard for the

conditions of his parole, we perceive nothing improper in the

assessment imposed” (Rosa, 108 AD3d at 1228 [internal quotation marks

omitted]; see Bell, 78 AD3d at 1394).

Petitioner’s remaining contentions are without merit. 

Entered: March 24, 2017 Frances E. Cafarell

Clerk of the Court