People ex rel. Derby v. Williams

• Decision Date: 15 July 1994
• Citation: 206 A.D.2d 831,614 N.Y.S.2d 848
• Parties: PEOPLE of the State of New York ex rel. John DERBY, Appellant, v. Melvin WILLIAMS, Superintendent, Wyoming Correctional Facility, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 848

614 N.Y.S.2d 848

206 A.D.2d 831

PEOPLE of the State of New York ex rel. John DERBY, Appellant, v. Melvin WILLIAMS, Superintendent, Wyoming Correctional Facility, et al., Respondents.

Supreme Court, Appellate Division, Fourth Department.

July 15, 1994.

Norman P. Effman by Susan Jones, Attica, for appellant.

Robert Abrams, Peter Sullivan by Gail Hallerdin, Buffalo, for respondent.

Before DENMAN, P.J., and PINE, FALLON, CALLAHAN and DAVIS, JJ.

MEMORANDUM:

Supreme Court properly dismissed the petition seeking habeas corpus relief. At petitioner's final parole revocation hearing, the Division of Parole proved by a preponderance of the evidence that petitioner violated three conditions of his parole by his constructive possession of a revolver (see, Executive Law § 259-i[3][f][viii]; People ex rel. Gillispie v. Warden, 191 A.D.2d 161, 162, 594 N.Y.S.2d 184; People ex rel. Walker v. Hammock, 78 A.D.2d 369, 372, 435 N.Y.S.2d 410) and by his possession of a knife (see, Penal Law § 265.01[1]; § 265.15[4]; cf., People ex rel. Pena v. New York State Div. of Parole, 83 A.D.2d 887, 442 N.Y.S.2d 99). Furthermore, the court properly concluded that petitioner is not entitled to relief from the determination of the Board of Parole that petitioner be returned and held until his maximum expiration date.

There is no merit to petitioner's contention that the Hearing Officer improperly admitted the revolver and knife into evidence at the final parole revocation hearing. In a criminal action based upon the same conduct that was the subject of the parole revocation proceeding, petitioner moved to suppress the revolver and knife on the ground that they were the fruits of an illegal search and seizure. After a hearing, his suppression motion was denied. Thus, contrary to petitioner's contention, the exclusionary rule is not implicated (cf., People ex rel. Piccarillo v. New York State Bd. of Parole, 48 N.Y.2d 76, 421 N.Y.S.2d 842, 397 N.E.2d 354; see generally, Matter of Boyd v. Constantine, 81 N.Y.2d 189, 597 N.Y.S.2d 605, 613 N.E.2d 511). Finally, the Hearing Officer was entitled to credit the testimony of the police officers and to reject petitioner's version of the incident (see, Matter of Foster v. Coughlin, 76 N.Y.2d 964, 966, 563 N.Y.S.2d 728, 565 N.E.2d 477; People ex rel. Vega v. Smith, 66 N.Y.2d 130, 140, 495 N.Y.S.2d 332, 485 N.E.2d 997).

Judgment unanimously affirmed.