Opinion
512 TP 21-00090
08-26-2021
In the Matter of Alex SHOGA, Petitioner, v. Anthony ANNUCCI, Acting Commissioner, New York State Department of Corrections and Community Supervision, Respondent.
WYOMING COUNTY-ATTICA LEGAL AID BUREAU, WARSAW (LEAH R. NOWOTARSKI OF COUNSEL), FOR PETITIONER. LETITIA JAMES, ATTORNEY GENERAL, ALBANY (KATE H. NEPVEU OF COUNSEL), FOR RESPONDENT.
WYOMING COUNTY-ATTICA LEGAL AID BUREAU, WARSAW (LEAH R. NOWOTARSKI OF COUNSEL), FOR PETITIONER.
LETITIA JAMES, ATTORNEY GENERAL, ALBANY (KATE H. NEPVEU OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., LINDLEY, TROUTMAN, BANNISTER, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER 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 [Michael M. Mohun, A.J.], entered January 11, 2021) to review a determination of respondent. The determination revoked petitioner's release to parole supervision.
It is hereby ORDERED that the determination is unanimously confirmed without costs and the amended petition is dismissed.
Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking to annul the determination revoking his parole release and remanding him to serve another 25 months of incarceration. We note at the outset that Supreme Court erred in transferring the matter to this Court inasmuch as petitioner did not allege in his amended petition that the determination is not supported by substantial evidence (see CPLR 7804 [g] ; Matter of Rodriguez v. Annucci , 120 A.D.3d 1579, 1580, 993 N.Y.S.2d 234 [4th Dept. 2014] ). We nevertheless review the merits of the amended petition in the interest of judicial economy (see Matter of Horace v. Annucci , 133 A.D.3d 1263, 1264, 20 N.Y.S.3d 492 [4th Dept. 2015] ; Rodriguez , 120 A.D.3d at 1580, 993 N.Y.S.2d 234 ).
As a preliminary matter, petitioner correctly contends that his subsequent release to parole does not render this proceeding moot inasmuch as his status as a parole violator "may have lasting consequences" ( Matter of Biondo v. New York State Bd. of Parole , 60 N.Y.2d 832, 834, 470 N.Y.S.2d 130, 458 N.E.2d 371 [1983] ; see Matter of Putnam County Probation Dept. v. Dimichele , 120 A.D.3d 820, 820, 991 N.Y.S.2d 366 [2d Dept. 2014] ). Petitioner's release to parole does, however, render moot his contention that the penalty was excessive (see Matter of Gray v. Travis , 239 A.D.2d 631, 632, 657 N.Y.S.2d 118 [3d Dept. 1997] ; see also Matter of Darnell v. David , 300 A.D.2d 766, 767, 750 N.Y.S.2d 802 [3d Dept. 2002] ). " ‘[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 Wilson v. Evans , 104 A.D.3d 1190, 1190, 960 N.Y.S.2d 807 [4th Dept. 2013] ; see Matter of Lozada v. New York State Div. of Parole , 61 A.D.3d 1393, 1394, 877 N.Y.S.2d 552 [4th Dept. 2009] ). Although petitioner raises a substantial evidence issue in the brief presented to this Court, "we are unable to address th[at] issue[ ] because he failed to raise [it] on his administrative appeal and thus failed to exhaust his administrative remedies with respect to [that issue]" ( Matter of Wearen v. Deputy Supt. Bish , 2 A.D.3d 1361, 1362, 768 N.Y.S.2d 874 [4th Dept. 2003] ; cf. Matter of Adams v. New York State Dept. of Corr. & Community Supervision , 151 A.D.3d 1770, 1771, 56 N.Y.S.3d 409 [4th Dept. 2017], appeal dismissed 30 N.Y.3d 1007, 66 N.Y.S.3d 227, 88 N.E.3d 388 [2017] ).
With respect to petitioner's remaining contentions, we conclude that all of the procedural requirements were followed and that he was not denied due process. There is no support in the record for "the contention of petitioner that the ... determination [of the Administrative Law Judge (ALJ)] was influenced by any alleged bias against petitioner" ( Matter of Edwards v. Fischer , 87 A.D.3d 1328, 1329, 930 N.Y.S.2d 358 [4th Dept. 2011] ; see Matter of Hampton v. Kirkpatrick , 82 A.D.3d 1639, 1639-1640, 919 N.Y.S.2d 422 [4th Dept. 2011] ). In addition, there is no support in the record for petitioner's contention that the ALJ "usurped the role of the prosecution, thereby depriving him of due process" ( Rodriguez , 120 A.D.3d at 1580, 993 N.Y.S.2d 234 ), or imposed a higher penalty "in retaliation for petitioner exercising his right to a hearing" ( Matter of Rago v. Alexander , 60 A.D.3d 1123, 1124, 874 N.Y.S.2d 605 [3d Dept. 2009] ).
Finally, we reject petitioner's contention that the ALJ denied petitioner his right to counsel. "A parolee receives ... effective assistance of counsel when the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation" ( Matter of Bond v. Stanford , 171 A.D.3d 1320, 1321, 97 N.Y.S.3d 807 [3d Dept. 2019], lv denied 34 N.Y.3d 902, 2019 WL 5444862 [2019] [internal quotation marks omitted]; see Matter of Wilson v. Evans , 104 A.D.3d 1190, 1191, 960 N.Y.S.2d 807 [4th Dept. 2013] ). Petitioner's contention that he was denied the right to confer with counsel and was thus denied effective assistance of counsel "is belied by the record, which reflects that petitioner was afforded meaningful representation" ( Matter of Partee v. Stanford , 159 A.D.3d 1294, 1295, 74 N.Y.S.3d 114 [3d Dept. 2018] ; see Matter of Rosa v. Fischer , 108 A.D.3d 1227, 1228, 969 N.Y.S.2d 706 [4th Dept. 2013], lv denied 22 N.Y.3d 855, 2013 WL 6068001 [2013] ).