Milburn v. New York State Div. of Parole

Decision Date09 May 1991
Citation173 A.D.2d 1016,569 N.Y.S.2d 849
PartiesIn the Matter of Louis MILBURN, Appellant, v. NEW YORK STATE DIVISION OF PAROLE, Respondent. (And Another Related Proceeding.)
CourtNew York Supreme Court — Appellate Division

Steinman & Steinberg (David Steinberg, of counsel), Poughkeepsie, for appellant.

Robert Abrams, Atty. Gen. (Burton Herman, of counsel), New York City, for respondent.

Before WEISS, J.P., and YESAWICH, LEVINE, MERCURE and HARVEY, JJ.

MERCURE, Justice.

Appeal (transferred to this court by order of the Appellate Division, Second Department) from a judgment of the Supreme Court (Benson, J.), entered August 12, 1986 in Dutchess County, which, in two proceedings pursuant to CPLR article 78, granted respondent's motion to dismiss the petitions for failure to exhaust administrative remedies.

By these proceedings, petitioner seeks to annul respondent's determination to revoke his parole upon the dual grounds that he was not provided with notice of a prior written statement of the primary witness against him, which tended to exculpate petitioner and was inconsistent with the witness's hearing testimony, and that respondent did not have before it a verbatim transcript of the final revocation hearing at the time it rendered its final decision to revoke petitioner's parole. Supreme Court dismissed the petitions on the ground that petitioner failed to pursue an administrative appeal to conclusion prior to commencing these proceedings. Petitioner appeals.

There should be an affirmance. Initially, we reject the contention that petitioner was not required to exhaust administrative remedies because the asserted errors did not show on the face of the hearing transcript. One of the stated grounds for an appeal from a final revocation hearing is that "relevant information was not available for consideration" by the board member or members making the determination (9 NYCRR 8006.3[a][2]; [b][2]. Further, a claim of newly discovered evidence will support an application for a rehearing (see, 9 NYCRR 8006.3[c].

Moreover, were we to reach the merits of the petitions, the result would be no different. The right of a criminal defendant to discovery of exculpatory material in the possession of the prosecution (see, Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215) or to be provided with prior written or recorded statements of trial witnesses (see, CPL 240.45[1][a]; People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, cert. denied 368 U.S. 866, 82 S.Ct. 117, 7 L.Ed.2d 64) has no application in an administrative proceeding to revoke...

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12 cases
  • Barbour v. People
    • United States
    • New York Supreme Court
    • 18 Noviembre 1994
    ...case that expressly addressed the application of Rosario to an administrative proceeding to revoke parole is Milburn v. N.Y.S. Div. of Parole, 173 A.D.2d 1016, 569 N.Y.S.2d 849. The court stated, in dicta, that the right to discovery of Brady material or Rosario material "has no application......
  • Brunson v. N.Y. State Dep't of Corr., 524196.
    • United States
    • New York Supreme Court — Appellate Division
    • 10 Agosto 2017
    ...State Dept. of Corr. & Community Supervision, 130 A.D.3d 1342, 1343, 15 N.Y.S.3d 853 [2015] ; Matter of Milburn v. New York State Div. of Parole, 173 A.D.2d 1016, 1017, 569 N.Y.S.2d 849 [1991] )."It is well established that a parole revocation decision will be upheld so long as the procedur......
  • Hachamovitch v. Office of Professional Medical Conduct
    • United States
    • New York Supreme Court — Appellate Division
    • 2 Mayo 1996
    ...raise it in the first CPLR article 78 proceeding and is found to be meritless in any event (see, Matter of Milburn v. New York State Div. of Parole, 173 A.D.2d 1016, 1017, 569 N.Y.S.2d 849). ADJUDGED that the determination is confirmed, without costs, and petition MIKOLL, J.P., and CREW, YE......
  • Zablocki v. Straley
    • United States
    • New York Supreme Court — Appellate Division
    • 9 Mayo 1991
    ... ... McNulty of Thurm & Heller, New York City, of counsel), Fishkill, for appellant ... ...
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