                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 14, 2016                     521179
________________________________

In the Matter of JUAN G.
   RODRIGUEZ,
                    Petitioner,
      v                                     MEMORANDUM AND JUDGMENT

NEW YORK STATE DEPARTMENT OF
   CORRECTIONS AND COMMUNITY
   SUPERVISION et al.,
                    Respondents.
________________________________


Calendar Date:   May 24, 2016

Before:   Lahtinen, J.P., McCarthy, Garry, Clark and Mulvey, JJ.

                             __________


     Juan G. Rodriguez, Cape Vincent, petitioner pro se.

      Eric T. Schneiderman, Attorney General, Albany (Frank Brady
of counsel), for respondents.

                             __________


Clark, J.

      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 respondent Board of Parole revoking
petitioner's parole.

      Petitioner was convicted, upon his guilty plea, of criminal
possession of a controlled substance in the third and seventh
degrees. After his termination from a drug court program,
petitioner was sentenced as a second felony offender to the
agreed-upon prison term of three years with two years of
postrelease supervision (hereinafter PRS). On October 18, 2012,
following his successful completion of a shock incarceration
                              -2-                521179

program, petitioner was conditionally released to PRS (see
Correction Law § 867 [4]; Penal Law § 70.45 [5] [a]). In
December 2013, petitioner was charged, as later amended, with
violating the conditions of his release by striking his
girlfriend during a domestic dispute and testing positive for
marihuana and opiates. Following a final parole revocation
hearing, the Administrative Law Judge (hereinafter ALJ) sustained
the charges and ordered that petitioner be held until the maximum
expiration of his sentence. When a timely response to
petitioner's administrative appeal was not forthcoming, he
commenced this CPLR article 78 proceeding challenging the
revocation determination.

      "[R]evocation of parole will be confirmed where procedural
requirements were followed and evidence, if credited, exists to
support the determination" (Matter of McQueen v New York State
Bd. of Parole, 118 AD3d 1238, 1239 [2014] [internal quotation
marks and citations omitted], lv denied 24 NY3d 907 [2014]).
Here, the girlfriend testified that petitioner slapped her across
the face during an argument, causing swelling and other injury,
and thereafter pressured her not to testify. This testimony,
which the ALJ credited over petitioner's contrary account,
combined with the police report of the incident and petitioner's
incriminating statement to police, provides the requisite
substantial evidence to support the first and second charges (see
id. at 1238-1239; see also Matter of Shook v Evans, 121 AD3d
1141, 1142 [2014]). Neither the victim's wish to not pursue
criminal charges nor the fact that the police officer did not
document her injuries undermines the finding that petitioner
violated the conditions of parole or precludes revocation of
parole for that conduct (see Matter of McQueen v New York State
Bd. of Parole, 118 AD3d at 1239; Matter of Coston v New York
State Div. of Parole, 111 AD3d 1075, 1076 [2013]). The testimony
of petitioner's parole officer established his positive drug test
results, which, along with his admission that he used marihuana
and opiates, provided substantial evidence to sustain the
remaining charges (see People ex rel. Muhammad v Bradt, 68 AD3d
1391, 1392 [2009]).

      We also uphold the penalty imposed by the ALJ. Having
violated the conditions of PRS, after being conditionally
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released to such supervision following his successful completion
of the shock incarceration program (see Correction Law § 867 [4];
Penal Law § 70.45 [5] [a]), the ALJ had the discretion to impose
a penalty of reincarceration up to the maximum expiration of his
sentence (see Penal Law § 70.45 [1], [5] [a], [d]; Executive Law
§ 259-i [3] [f] [x] [D]; 9 NYCRR 8005.20 [c] [1] [vi]), which, in
this case, was the unserved portion of his determinate sentence,
plus the remaining period of his PRS (see People v Williams, 19
NY3d 100, 104-105 [2012]).

      To the extent that Matter of Jacoby v Evans (84 AD3d 1731
[2011]) requires a different result, we decline to follow it.
Initially, we are unable to discern from Matter of Jacoby whether
the petitioner in that case is similarly situated to petitioner
in the instant case. Additionally, we do not agree that 9 NYCRR
8005.20 never applies to violators serving a period of PRS, as
there is nothing in the regulatory language that leads to such a
conclusion and there is no separate regulatory framework
applicable to violators of postrelease supervision. In our view,
9 NYCRR 8005.20 (c) (1) (vi) – the provision applicable to
petitioner – is consistent with Penal Law § 70.45. Accordingly,
the ALJ properly designated petitioner a category 1 violator and
imposed a penalty of reincarceration up to the maximum expiration
of his sentence.

      Finally, in view of the nature of petitioner's conduct and
his attempts to tamper with the victim's testimony, the ALJ's
determination to hold petitioner until the maximum expiration of
his sentence was not harsh or excessive (see Matter of Davis v
New York State Bd. of Parole, 81 AD3d 1020, 1021 [2011]; Matter
of Rogers v Dennison, 47 AD3d 1149, 1151 [2008], lv denied 10
NY3d 711 [2008]). Petitioner's remaining contentions have been
examined and found to be without merit.

     Lahtinen, J.P., McCarthy, Garry and Mulvey, JJ., concur.
                              -4-                  521179

      ADJUDGED that the determination is confirmed, without
costs, and petition dismissed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
