Milburn v. New York State Div. of Parole

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

Page 849

569 N.Y.S.2d 849
173 A.D.2d 1016
In the Matter of Louis MILBURN, Appellant,
v.
NEW YORK STATE DIVISION OF PAROLE, Respondent.
(And Another Related Proceeding.)
Supreme Court, Appellate Division,
Third Department.
May 9, 1991.

Page 850

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.

[173 A.D.2d 1017] 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...

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12 practice notes
  • Barbour v. People
    • United States
    • United States State Supreme Court (New York)
    • November 18, 1994
    ...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 in an adm......
  • Brunson v. N.Y. State Dep't of Corr., 524196.
    • United States
    • New York Supreme Court Appellate Division
    • August 10, 2017
    ...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 procedural requireme......
  • Hachamovitch v. Office of Professional Medical Conduct
    • United States
    • New York Supreme Court Appellate Division
    • May 2, 1996
    ...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 [227 A.D.2d 688] ADJUDGED that the determination is confirmed, without costs, and petition dismissed. [227 A.D.2d 687]......
  • People ex rel. Cook v. Leonardo
    • United States
    • New York Supreme Court Appellate Division
    • December 16, 1999
    ...pursued to avoid dismissal for failure to exhaust administrative remedies (see, Matter of Milburn v. New York State Division of Parole, 173 A.D.2d 1016, 569 N.Y.S.2d 849). Thus, there is no basis for avoiding dismissal in this case (compare, People ex rel. Hacker v. New York State Div. of P......
  • Request a trial to view additional results
12 cases
  • Barbour v. People
    • United States
    • United States State Supreme Court (New York)
    • November 18, 1994
    ...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 in an adm......
  • Brunson v. N.Y. State Dep't of Corr., 524196.
    • United States
    • New York Supreme Court Appellate Division
    • August 10, 2017
    ...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 procedural requireme......
  • Hachamovitch v. Office of Professional Medical Conduct
    • United States
    • New York Supreme Court Appellate Division
    • May 2, 1996
    ...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 [227 A.D.2d 688] ADJUDGED that the determination is confirmed, without costs, and petition dismissed. [227 A.D.2d 687]......
  • People ex rel. Cook v. Leonardo
    • United States
    • New York Supreme Court Appellate Division
    • December 16, 1999
    ...pursued to avoid dismissal for failure to exhaust administrative remedies (see, Matter of Milburn v. New York State Division of Parole, 173 A.D.2d 1016, 569 N.Y.S.2d 849). Thus, there is no basis for avoiding dismissal in this case (compare, People ex rel. Hacker v. New York State Div. of P......
  • Request a trial to view additional results

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