Opinion
930 TP 14-00415
09-26-2014
Wyoming County–Attica Legal Aid Bureau, Warsaw (Adam W. Koch of Counsel), for Petitioner. Eric T. Schneiderman, Attorney General, Albany (Frank Brady of Counsel), for Respondent.
Wyoming County–Attica Legal Aid Bureau, Warsaw (Adam W. Koch of Counsel), for Petitioner.
Eric T. Schneiderman, Attorney General, Albany (Frank Brady of Counsel), for Respondent.
PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, and WHALEN, JJ.
Opinion
MEMORANDUM: Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination revoking his parole release and remanding him to serve the remainder of his sentence. We note at the outset that Supreme Court erred in transferring the matter to this Court inasmuch as petitioner does not allege that the determination is not supported by substantial evidence (see CPLR 7804[g] ). We nevertheless review the merits of the petition in the interest of judicial economy (see Matter of Moulden v. Coughlin, 210 A.D.2d 997, 997, 621 N.Y.S.2d 250 ). We reject petitioner's contention that he was deprived of due process based upon the alleged bias of the Hearing Officer. Indeed, “[t]here is no support in the record for the contention of petitioner that the Hearing Officer's determination was influenced by any alleged bias against [him]” (Matter of Edwards v. Fischer, 87 A.D.3d 1328, 1329, 930 N.Y.S.2d 358 ; see generally Matter of Hughes v. Suffolk County Dept. of Civ. Serv., 74 N.Y.2d 833, 834, 546 N.Y.S.2d 335, 545 N.E.2d 625, mot. to amend remittitur granted 74 N.Y.2d 942, 550 N.Y.S.2d 274, 549 N.E.2d 476 ). We also reject petitioner's contention that the Hearing Officer usurped the role of the prosecution, thereby depriving him of due process (cf. Matter of Moore v. Alexander, 53 A.D.3d 747, 748–749, 861 N.Y.S.2d 473, lv. denied 11 N.Y.3d 710, 872 N.Y.S.2d 72, 900 N.E.2d 555 ). Contrary to petitioner's further contention, the Hearing Officer, rather than a member of the Parole Board, properly determined the penalty in accordance with Executive Law § 259–i(3) (see Matter of Mayfield v. Evans, 93 A.D.3d 98, 102–107, 938 N.Y.S.2d 290 ; see also People ex rel. Clinton v. Fischer, 111 A.D.3d 1360, 1361, 974 N.Y.S.2d 839 ).
It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.