People ex rel. Fryer v. Beaver

Appeal from a judgment (denominated order) of Supreme Court, Orleans County (Punch, J.), entered January 22, 2001, which granted the petition seeking a writ of habeas corpus. It is hereby ordered that the judgment so appealed from be and the same hereby is reversed on the law without costs and the petition is dismissed. Memorandum: Supreme Court erred in granting the petition seeking a writ of habeas corpus. We conclude that the determination of the Division of Parole that relator violated the conditions of his parole is supported by substantial evidence (see, Matter of Westcott v New York State Bd. of Parole, 256 AD2d 1179; Matter of Castro v Russi, 216 AD2d 968, lv denied 86 NY2d 711). The Division of Parole alleged, inter alia, that relator violated the terms of his parole by striking his pregnant girlfriend about the head and threatening to kill her. At the parole revocation hearing, a police officer and relator’s parole officer each testified that relator’s girlfriend had informed them that relator struck her about the head during an argument and threatened to kill her, and their respective reports concerning the incident were admitted in evidence. Both witnesses also described the bruise on the face of relator’s girlfriend and the police officer testified that the photograph of that bruise admitted in evidence accurately reflected his observation. Relator’s girlfriend testified as a hostile witness. She admitted that the testimony of the police officer and the parole officer was consistent with what she had told them, but she further testified that her prior statements were “inaccurate,” and that the bruise was inflicted by a woman whom she “caught” with relator. The Administrative Law Judge did not credit the testimony of relator’s girlfriend that the bruise was caused by someone other than relator. We conclude that the determination is supported by substantial evidence, including hearsay that was properly admitted (see, Matter of Courtney v New York State Div. of Parole, 283 AD2d 707; Matter of Williams v New York State Bd. of Parole, 225 AD2d 490, lv denied 88 NY2d 810). Thus, we reverse the judgment and dismiss the petition. All concur except Scudder, J., who concurs in the result in the following Memorandum.