Opinion
2014-10-2
In the Matter of Noah SHOOK, Petitioner, v. New York State Division of Parole Commissioner Andrea W. EVANS, Respondent.
Noah Shook, Malone, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Jonathan D. Hitsous of counsel), for respondent.
Noah Shook, Malone, petitioner pro se. Eric T. Schneiderman, Attorney General, Albany (Jonathan D. Hitsous of counsel), for respondent.
Before: STEIN, J.P., McCARTHY, GARRY, ROSE and EGAN JR., JJ.
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 postrelease supervision period and imposing a 24–month hold.
In July 2010, petitioner was convicted of criminal sale of a controlled substance in the third degree and sentenced to 2 1/2 years in prison, to be followed by two years of postrelease supervision. In June 2012, he was released to postrelease supervision subject to certain conditions. He was subsequently found guilty of violating three conditions based on his contact with his estranged wife in violation of an order of protection. As a result, the Board of Parole revoked his release and imposed a 24–month hold. When he did not receive a timely decision on his administrative appeal, he commenced this proceeding.
Initially, although petitioner has again been released on postrelease supervision, “this proceeding is not moot given that the maximum expiration date of his sentence remains affected by the issues presented” (People ex rel. Speights v. McKoy, 88 A.D.3d 1039, 1040, 930 N.Y.S.2d 498 [2011]; accord People ex rel. Albert v. Schneiderman, 120 A.D.3d 856, 856, 991 N.Y.S.2d 180 [2014] ). Thus, we will address the merits.
Substantial evidence supports the determination that petitioner violated conditions of his postrelease supervision. Petitioner acknowledged that he was aware of the order of protection requiring him to stay away from his wife and her home. Petitioner's wife testified that he went to her home, rang the doorbell and talked to her through a window. A parole officer testified that petitioner admitted that he went to his wife's home. Although petitioner denied having gone to her home, his testimony created a credibility question that the Board of Parole resolved against him ( see Matter of Lamolli v. Marasa, 81 A.D.3d 1058, 1059, 916 N.Y.S.2d 653 [2011], lv. denied17 N.Y.3d 702, 2011 WL 2236948 [2011]; Matter of McCowan v. Evans, 81 A.D.3d 1028, 1029, 916 N.Y.S.2d 290 [2011] ). The proof that petitioner violated a valid order of protection constituted substantial evidence that he violated the conditions of release requiring that he obey any orders of protection, not engage in actions that threatened the well-being or safety of others and not engage in activity that violates the law ( see Matter of McCowan v. Evans, 81 A.D.3d at 1029, 916 N.Y.S.2d 290; Matter of Currie v. New York State Bd. of Parole, 298 A.D.2d 805, 805–806, 748 N.Y.S.2d 712 [2002] ).
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.