        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

600
CA 12-01504
PRESENT: SMITH, J.P., FAHEY, CARNI, VALENTINO, AND WHALEN, JJ.


IN THE MATTER OF MICHAEL GONZALEZ,
PETITIONER-APPELLANT,

                    V                              MEMORANDUM AND ORDER

DALE ARTUS, SUPERINTENDENT, GOWANDA CORRECTIONAL
FACILITY, AND BRIAN FISCHER, COMMISSIONER, NEW
YORK STATE DEPARTMENT OF CORRECTIONS AND
COMMUNITY SUPERVISION, RESPONDENTS-RESPONDENTS.


MICHAEL GONZALEZ, PETITIONER-APPELLANT PRO SE.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (FRANK BRADY OF
COUNSEL), FOR RESPONDENTS-RESPONDENTS.


     Appeal from a judgment (denominated order) of the Supreme Court,
Erie County (Penny M. Wolfgang, J.), dated June 26, 2012 in a
proceeding pursuant to CPLR article 78. The judgment dismissed the
petition.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.

     Memorandum: Petitioner commenced this proceeding seeking a writ
of habeas corpus. Supreme Court (Feroleto, J.) converted the
proceeding to one pursuant to CPLR article 78. The case was then
assigned to a different Supreme Court Justice (Wolfgang, J.), who
ultimately dismissed the petition. Petitioner appeals, and we affirm.

     Respondents concede that the record does not conclusively
establish that petitioner failed to exhaust his administrative
remedies, and thus we reach the merits of this appeal (cf. generally
Matter of Karlin v Cully, 104 AD3d 1285, 1286). Here, petitioner
pleaded guilty to violating two conditions of his parole. Petitioner
now challenges the parole revocation determination on the ground that
one of the conditions of parole at issue, i.e., the condition
precluding fraternization with any person petitioner knows to have a
criminal record (fraternization condition) (see 9 NYCRR 8003.2 [g]),
is unconstitutionally vague. That challenge survives petitioner’s
guilty plea (see People v Hansen, 95 NY2d 227, 231 n 2; People v
Lee, 58 NY2d 491, 494), but is not properly before us inasmuch as the
record does not establish that it was raised before the motion court
(see Ciesinski v Town of Aurora, 202 AD2d 984, 985; cf. Palermo v
Taccone, 79 AD3d 1616, 1618). Petitioner’s further contention that
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                                                        CA 12-01504

the fraternization condition was arbitrarily applied to him is
foreclosed by his guilty plea (see Hansen, 95 NY2d at 231 n 3; People
v Rodriguez, 55 NY2d 776, 777). Additionally, with respect to both of
the conditions of parole at issue, we note that petitioner’s “plea of
guilty . . . precludes [a] challenge to the legal sufficiency of the
evidence of guilt” and, “[i]n any event, the guilty plea constitutes
substantial evidence of his guilt” (Matter of Holdip v Travis, 9 AD3d
825, 826). We have reviewed petitioner’s remaining contention and
conclude that it lacks merit.




Entered:   June 14, 2013                       Frances E. Cafarell
                                               Clerk of the Court
