SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1224 

TP 15-00560 

PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND DEJOSEPH, JJ. 

 

IN THE MATTER OF HENRY JOHNSON, PETITIONER, 

V MEMORANDUM AND ORDER

JAMES THOMPSON, SUPERINTENDENT, COLLINS 

CORRECTIONAL FACILITY, RESPONDENT. 

HENRY JOHNSON, PETITIONER PRO SE. 

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (KATE H. NEPVEU 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, Erie County [M. William

Boller, A.J.], entered March 31, 2015) to review a determination of

respondent. The determination revoked the parole of petitioner. 

It is hereby ORDERED that the order transferring this proceeding

is unanimously vacated without costs.

Memorandum: Petitioner commenced this proceeding seeking a writ

of habeas corpus pursuant to CPLR article 70, contending that the

Parole Board improperly revoked his release after a final revocation

hearing. Supreme Court (Feroleto, J.) denied the petition on the

ground that the allegations therein, if taken as true, would not

entitle petitioner to release from prison as a matter of law, but also

converted the matter to a CPLR article 78 proceeding and signed an

order directing respondent to appear before the court (Boller, A.J.)

and to show cause why the relief requested in the petition should not

be granted. The court then transferred the converted proceeding to

this Court pursuant to CPLR 7804 (g). 

As respondent correctly concedes, the court (Feroleto, J.), upon

determining that petitioner was not entitled to habeas corpus relief,

erred in converting this habeas corpus proceeding into one pursuant to

CPLR article 78 inasmuch as “the sole basis for petitioner’s continued

incarceration is the determination of the Parole Board to revoke

petitioner’s parole” (Matter of Zientek v Herbert, 199 AD2d 1075,

1076; see People ex rel. Brazeau v McLaughlin, 233 AD2d 724, 725, lv

denied 89 NY2d 810; People ex rel. Smith v Mantello, 167 AD2d 912,

912). Thus, there was no basis to transfer the proceeding to this

Court pursuant to CPLR 7804 (g) (see generally Matter of Cappon v

Carballada, 93 AD3d 1179, 1180). We note, however, that the court
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TP 15-00560 

(Feroleto, J.) properly determined that the habeas corpus petition is

without merit. The evidence presented at the final parole revocation

hearing established by the requisite preponderance of the evidence

that petitioner violated a condition of his parole (see People ex rel.

Shannon v Khahaifa, 74 AD3d 1867, 1867, lv dismissed 15 NY3d 868). 

Issues of credibility were for the Administrative Law Judge (ALJ) to

resolve (see Matter of Johnson v Alexander, 59 AD3d 977, 977; Matter

of Miller v Board of Parole, 278 AD2d 697, 697), and he was entitled

to consider hearsay evidence (see People ex rel. Fryer v Beaver, 292

AD2d 876, 876; see generally Matter of Currie v New York State Bd. of

Parole, 298 AD2d 805, 805-806). 

We reject petitioner’s further contention that collateral

estoppel and res judicata precluded the ALJ from revoking his parole

based on his alleged commission of a new crime inasmuch as the Grand

Jury had declined to indict petitioner with respect thereto. 

“Contrary to petitioner’s contention, the Grand Jury’s determination

not to indict with respect to [that] crime[] did not collaterally

estop the Parole Board from proceeding against petitioner based on

[that] crime[]” (People ex rel. Thurman v Williams, 275 AD2d 1022,

1022, lv denied 95 NY2d 770; see People v West, 283 AD2d 721, 722, lv

denied 96 NY2d 836), nor did the revocation of petitioner’s parole

violate the principal of res judicata. 

Entered: December 23, 2015 Frances E. Cafarell

Clerk of the Court