Campbell v. Evans

• Decision Date: 25 April 2013
• Citation: 2013 N.Y. Slip Op. 02791,105 A.D.3d 1277,963 N.Y.S.2d 771
• Parties: In the Matter of Steve CAMPBELL, Appellant, v. Andrea D. EVANS, as Chair of the Division of Parole, Respondent.
• Court: New York Supreme Court — Appellate Division

105 A.D.3d 1277

963 N.Y.S.2d 771

2013 N.Y. Slip Op. 02791

In the Matter of Steve CAMPBELL, Appellant,

v.Andrea D. EVANS, as Chair of the Division of Parole, Respondent.

Supreme Court, Appellate Division, Third Department, New York.

April 25, 2013.

Rebekah J. Pazmino, Office of the Appellate Defender, New York City, for appellant.

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

Before: PETERS, P.J., STEIN, SPAIN and GARRY, JJ.

GARRY, J.

Appeal from a judgment of the Supreme Court (Melkonian, J.), entered December 7, 2011 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of the Board of Parole declaring petitioner delinquent under the terms of his parole.

Petitioner is currently imprisoned as the result of 1990 and 1994 robbery convictions. While on parole, he was convicted for drug offenses committed in December 2000 and July 2001 and sentenced to an additional aggregate prison term of 4 to 8 years. While he was not issued a notice of violation by the Board of Parole until August 2001, he was ultimately declared delinquent as of December 2000. He was released to parole supervision in 2007 and, two years later, was discharged from parole on the 2001 sentences ( seeExecutive Law § 259–j former [3–a]; see also L. 2004, ch. 738, § 37). Petitioner's sentence was accordingly recalculated, which resulted in a maximum expiration date of October 2, 2011.

He was thereafter arrested and charged with various drug offenses in March 2010, pleaded guilty to one count of criminal possession of a controlled substance in the third degree, and was sentenced in January 2011 to serve an additional six years in prison to be followed by three years of postrelease supervision. After his conviction, the Board issued a final declaration of delinquency finding him delinquent as of March 2010. Petitioner commenced this CPLR article 78 proceeding to challenge the declaration of delinquency. Supreme Court dismissed the petition following joinder of issue, and petitioner now appeals.

We affirm. Petitioner does not dispute that the Board is generally free to declare a parolee delinquent as of “the date of arrest or the date of the commission of the crime, rather than the date of conviction” ( Matter of Jarrell v. Rodriguez, 167 A.D.2d 776, 777, 563 N.Y.S.2d 330 [1990],lv. denied77 N.Y.2d 806, 568 N.Y.S.2d 914, 571 N.E.2d 84 [1991]see9 NYCRR 8004.3[b]; Matter of Cruz v. New York State Dept. of Correctional Servs., 288 A.D.2d 572, 573, 732 N.Y.S.2d 651 [2001],appeal dismissed97 N.Y.2d 725, 740 N.Y.S.2d 696, 767 N.E.2d 153 [2002];Matter of Bonilla v. Russi, 210 A.D.2d 828, 829, 620 N.Y.S.2d 1019 [1994] ). He nevertheless...