Hilbourne v. Rodriguez

155 A.D.2d 917, 547 N.Y.S.2d 740, 1989 N.Y. App. Div. LEXIS 14769

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 15, 1989
• Status: Published

Opinion

— Determination unanimously annulled and petition granted. Memorandum: The Division of Parole must prove, by a preponderance of the evidence, that a parolee has violated the terms of his parole (see, Executive Law § 259-i [3] [¶] [viii]; 9 NYCRR 8005.20; People ex rel. Matthews v New York State Div. of Parole, 58 NY2d 196, 202). This burden is not satisfied unless there is a residuum of legal evidence to support a finding of guilt (People ex rel. Manton v Von Holden, 86 AD2d 967, 968, lv denied 56 NY2d 505). Hearsay alone will not suffice (People ex rel. Manton v Von Holden, supra; see also, People v Krzykowski, 121 AD2d 831, 832; People v Todd D., 100 AD2d 595). In the subject case, the only evidence probative of the claimed violation of parole consisted of hearsay; thus the Division failed to sustain its burden of proof. (Article 78 proceeding transferred by order of Supreme Court, Wyoming County, Dadd, J.) Present — Den-man, J. P., Green, Pine, Balio and Lawton, JJ.