         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
283
TP 10-00458
PRESENT: SCUDDER, P.J., CENTRA, CARNI, SCONIERS, AND GREEN, JJ.


IN THE MATTER OF FRANKLIN JOEL T. HAMPTON, JR.,
PETITIONER,

                    V                               MEMORANDUM AND ORDER

ROBERT A. KIRKPATRICK, SUPERINTENDENT, WENDE
CORRECTIONAL FACILITY, AND HENRY LEMONS, JR.,
INTERIM CHAIRMAN, NEW YORK STATE DIVISION OF
PAROLE, RESPONDENTS.


FRANKLIN JOEL T. HAMPTON, JR., PETITIONER PRO SE.

ANDREW M. CUOMO, ATTORNEY GENERAL, ALBANY (JULIE M. SHERIDAN OF
COUNSEL), FOR RESPONDENTS.


     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, Erie County [John L.
Michalski, A.J.], entered February 18, 2010) to review a determination
of respondents. The determination revoked petitioner’s parole after a
final parole revocation hearing.

     It is hereby ORDERED that the judgment so appealed from is
unanimously modified on the law by vacating the second, third and
fifth ordering paragraphs and dismissing the petition and as modified
the judgment is affirmed without costs.

     Memorandum: We agree with petitioner that Supreme Court
(Feroleto, J.), upon determining that petitioner was not entitled to
habeas corpus relief, erred in converting this habeas corpus
proceeding into one pursuant to CPLR article 78 inasmuch as “the sole
basis for petitioner’s continued incarceration is the determination of
the Parole Board to revoke petitioner’s parole” (Matter of Zientek v
Herbert, 199 AD2d 1075, 1076; see People ex rel. Brazeau v McLaughlin,
233 AD2d 724, 725, lv denied 89 NY2d 810; People ex rel. Smith v
Mantello, 167 AD2d 912). Consequently, there was no basis for the
order issued by Supreme Court (Michalski, A.J.) transferring the
proceeding to this Court pursuant to CPLR 7804 (g). We therefore
modify the judgment accordingly. On the merits, we conclude that the
court (Feroleto, J.) properly denied habeas corpus relief to
petitioner, and we further modify the judgment by dismissing the
petition. Contrary to petitioner’s contention, the evidence presented
at the final parole revocation hearing established by the requisite
preponderance of the evidence that he violated a condition of his
                                 -2-                          283
                                                        TP 10-00458

parole (see People ex rel. Shannon v Khahaifa, 74 AD3d 1867, lv
dismissed 15 NY3d 868). Issues of credibility were for the resolution
of the Administrative Law Judge (ALJ) (see Matter of Johnson v
Alexander, 59 AD3d 977; Matter of Miller v Board of Parole, 278 AD2d
697), who was entitled to consider hearsay evidence (see People ex
rel. Fryer v Beaver, 292 AD2d 876; see generally Matter of Currie v
New York State Bd. of Parole, 298 AD2d 805). Petitioner’s further
contention that the ALJ was biased “lacks support in the record and,
further, there is no proof that the outcome of this case flowed from
the alleged bias” (Brazeau, 233 AD2d at 726; see Matter of Castro v
Russi, 216 AD2d 968, lv denied 86 NY2d 711).




Entered:   March 25, 2011                      Patricia L. Morgan
                                               Clerk of the Court
