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The People of the State of New York ex rel. Vincent McWhinney v. Carl Smith, as Superintendent of Marcy Correctional Facility
Judgment unanimously affirmed without costs. Memorandum: On appeal, relator has abandoned the contention advanced in his petition seeking a writ of habeas corpus. Instead, he asserts that the New York State Division of Parole failed to prove, by a preponderance of the evidence, that relator violated the terms of his parole.
That issue is not properly before us because it was not advanced at Supreme Court and is not encompassed within the issues raised by the petition (see, Byrne Family Mgt. v Village of Phoenix, 190 AD2d 1032). Were we to address that issue, we would find it to be lacking in merit. (Appeal from Judgment of Supreme Court, Oneida County, Murad, J. — Habeas Corpus.) Present — Pine, J. P., Lawton, Wesley, Davis and Boehm, JJ.