State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: June 16, 2016 521695 

________________________________

In the Matter of JAMES MOORE,

Petitioner,

v

TINA M. STANFORD, as Chair of MEMORANDUM AND JUDGMENT

the Board of Parole, 

Department of Corrections 

and Community Supervision,

Respondent.

________________________________

Calendar Date: May 26, 2016

Before: Lahtinen, J.P., Rose, Lynch, Clark and Aarons, JJ.

__________

James Moore, Rochester, petitioner pro se.

Eric T. Schneiderman, Attorney General, Albany (Owen Demuth

of counsel), for respondent.

__________

Aarons, J.

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 2003, petitioner was convicted of a number of crimes,

including attempted murder in the second degree and robbery in

the first degree. He was sentenced to an aggregate prison term

of 10 years, to be followed by five years of postrelease

supervision, and was released to parole supervision in September

2011. In March 2014, following his arrest for forcible touching,

he was charged with violating various rules governing his
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parole.1 Specifically, as is relevant here, he was charged with

violating rule number nine by possessing a compact BB gun, rule

number five by failing to respond truthfully when asked if he had

weapons in his residence and rule number eight by threatening the

well-being of others when he hid in a laundry room to avoid

apprehension. Petitioner waived a preliminary hearing and was

thereafter charged with violating additional rules. As is

relevant here, petitioner was charged with violating rule number

five by falsely telling his parole officer that he was at his

mother's house when the police came to his residence to arrest

him. Following a final parole revocation hearing, a

determination was rendered finding petitioner guilty of the

foregoing charges, revoking his parole and imposing a 24-month

delinquent time assessment. He filed an administrative appeal

and, when it was not decided within four months, he commenced

this CPLR article 78 proceeding challenging the determination.2

It is well settled that "[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 Williams v Evans, 129 AD3d 1408, 1409

[2015] [internal quotations marks and citation omitted]; see

Matter of McQueen v New York State Bd. of Parole, 118 AD3d 1238,

1239 [2014], lv denied 24 NY3d 907 [2014]). "Notably, in order

to warrant revocation, the alleged parole violation must be

supported by a preponderance of the evidence" (Matter of Peck v

Evans, 118 AD3d 1086, 1087 [2014] [citations omitted]; see

Executive Law § 259-i [3] [f] [viii]). Here, one police officer

and two parole officers, all of whom were involved in the

apprehension of petitioner at his apartment, testified at the

final parole revocation hearing. Their testimony established by

1 Petitioner previously violated his parole in March 2013

which resulted in his parole being revoked. He was released back

to parole supervision in August 2013.

2 Although petitioner was released to parole in March 2016,

the proceeding is not moot given that his maximum expiration date

is not until September 2017 (see Matter of Shook v Evans, 121

AD3d 1141, 1142 [2014]).
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a preponderance of the evidence that, contrary to the rules

governing his parole, petitioner possessed a BB gun and lied

about having a firearm at his residence and his whereabouts when

the police came to his residence to arrest him. 

There was no compelling testimony, however, to substantiate

the charge that petitioner violated rule number eight by

allegedly threatening the well-being of others when he hid in a

laundry room to evade apprehension. The parole officer who found

petitioner hiding behind the door in the laundry room stated that

he was startled to unexpectedly find petitioner in that location,

but indicated that petitioner was compliant and did not engage in

any violent or threatening behavior. Thus, that part of the

determination finding petitioner guilty of this charge must be

annulled (see Matter of Peck v Evans, 118 AD3d at 1087-1088;

Matter of Kravetz v New York State Div. of Parole, 293 AD2d 843,

844 [2002], lv denied 98 NY2d 610 [2002]). We have considered

petitioner's remaining contentions and find that they are either

unpreserved or lacking in merit.

Lahtinen, J.P., Rose, Lynch and Clark, JJ., concur.

ADJUDGED that the determination is modified, without costs,

by annulling so much thereof as found petitioner guilty of

violating rule number eight by threatening the well-being of

others by hiding to evade apprehension; petition granted to that

extent; and, as so modified, confirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court