Opinion
July 15, 1994
Appeal from the Supreme Court, Wyoming County, Dadd, J.
Present — Denman, P.J., Pine, Fallon, Callahan and Davis, JJ.
Judgment unanimously affirmed. Memorandum: Supreme Court properly dismissed the petition seeking habeas corpus relief. At petitioner's final parole revocation hearing, the Division of Parole proved by a preponderance of the evidence that petitioner violated three conditions of his parole by his constructive possession of a revolver (see, Executive Law § 259-i [f] [viii]; People ex rel. Gillispie v. Warden, 191 A.D.2d 161, 162; People ex rel. Walker v. Hammock, 78 A.D.2d 369, 372) and by his possession of a knife (see, Penal Law § 265.01; § 265.15 [4]; cf., People ex rel. Pena v. New York State Div. of Parole, 83 A.D.2d 887). Furthermore, the court properly concluded that petitioner is not entitled to relief from the determination of the Board of Parole that petitioner be returned and held until his maximum expiration date.
There is no merit to petitioner's contention that the Hearing Officer improperly admitted the revolver and knife into evidence at the final parole revocation hearing. In a criminal action based upon the same conduct that was the subject of the parole revocation proceeding, petitioner moved to suppress the revolver and knife on the ground that they were the fruits of an illegal search and seizure. After a hearing, his suppression motion was denied. Thus, contrary to petitioner's contention, the exclusionary rule is not implicated (cf., People ex rel. Piccarillo v. New York State Bd. of Parole, 48 N.Y.2d 76; see generally, Matter of Boyd v. Constantine, 81 N.Y.2d 189). Finally, the Hearing Officer was entitled to credit the testimony of the police officers and to reject petitioner's version of the incident (see, Matter of Foster v. Coughlin, 76 N.Y.2d 964, 966; People ex rel. Vega v. Smith, 66 N.Y.2d 130, 140).