SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

156 

TP 12-01404 

PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND VALENTINO, JJ. 

 

IN THE MATTER OF ANTONIO WILSON, PETITIONER, 

V MEMORANDUM AND ORDER

ANDREA W. EVANS, CHAIRWOMAN, 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 (VICTOR PALADINO 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 [Mark H.

Dadd, A.J.], entered July 27, 2012) to review a determination of

respondent. The determination revoked the parole of petitioner. 

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. “[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 Layne v New

York State Bd. of Parole, 256 AD2d 990, 992, lv dismissed 93 NY2d 886,

rearg denied 93 NY2d 1000; see Matter of Lozada v New York State Div.

of Parole, 61 AD3d 1393, 1394). We conclude that the determination

that petitioner violated the conditions of his release by consuming

alcohol is supported by substantial evidence (see generally Matter of

Shaw v Murray, 24 AD3d 1268, 1269, lv denied 6 NY3d 712). Among the

evidence presented at the final parole revocation hearing was a signed

form in which petitioner acknowledged that he consumed alcohol in

violation of the conditions of his release. Additionally, the parole

officer who prepared the form for petitioner’s signature denied that

petitioner was coerced or encouraged to sign the form. Petitioner’s

testimony that he had not consumed alcohol since his release from

prison and that he was coerced into signing the acknowledgment form

“merely presented a credibility issue that the ALJ was entitled to

resolve against petitioner” (Matter of Johnson v Alexander, 59 AD3d
-2- 156 

TP 12-01404 

977, 978; see Matter of Hampton v Kirkpatrick, 82 AD3d 1639, 1639). 

We have reviewed petitioner’s remaining contentions with regard to the

evidence supporting the ALJ’s determination and conclude that they are

without merit.

Petitioner’s further contention that the ALJ should have

adjourned the hearing to seek more information regarding the

intoximeter’s maintenance and to seek an expert opinion is unpreserved

for our review inasmuch as petitioner failed to request an adjournment

(see generally Lozada, 61 AD3d at 1394; see also Matter of Stanbridge

v Hammock, 55 NY2d 661, 663).

We reject petitioner’s contention that the 30-month time

assessment imposed against him is excessive. Petitioner correctly

acknowledges that “[t]he Executive Law does not place an outer limit

on the length of [the time] assessment [that may be imposed], and the

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

absence of impropriety” (Matter of Murchison v New York State Div. of

Parole, 91 AD3d 1005, 1005 [internal quotation marks omitted]; see

generally People ex rel. Matthews v New York State Div. of Parole, 58

NY2d 196, 205). Under the circumstances of this case, including the

fact that petitioner committed the violation only two days after his

release, we discern no impropriety here. Finally, the record does not

support petitioner’s contention that he was denied effective

assistance of counsel (see generally People v Baldi, 54 NY2d 137, 146-

147; Matter of McDonald v Russi, 213 AD2d 650, 650).

Entered: March 15, 2013 Frances E. Cafarell

Clerk of the Court