People ex rel. Jefferson v. Kelly

178 A.D.2d 973, 578 N.Y.S.2d 732, 1991 N.Y. App. Div. LEXIS 17822

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 26, 1991
• Status: Published

Opinion

— Judgment unanimously affirmed and motion denied. Memorandum: There is no merit to petitioner’s contention that he did not receive timely written notice of the Parole Board’s decision revoking his parole. A New York State Parole Violator System Status Inquiry computer printout, attached to respondents’ appellate brief, indicates that petitioner and his counsel were sent such notice on February 1, 1990, less than two weeks after the decision was rendered. This satisfies the statutory requirement that notice be made available "[a]s soon as practicable” (9 NYCRR 8005.20 [f]; see, Executive Law § 259-i [3] [f] [xi]; People ex rel. Knowles v Smith, 54 NY2d 259). This incontrovertible documentary evidence may be considered for the first time on appeal to sustain the judgment (see, Crawford v Merrill Lynch, Pierce, Fenner & Smith, 35 NY2d 291, 298-299; Brandes Meat Corp. v Cromer, 146 AD2d 666, 667). Accordingly, petitioner’s motion to strike that evidence from respondents’ brief is denied. (Appeal from Judgment of Supreme Court, Wyoming County, Dadd, J. — Habeas Corpus.) Present — Callahan, J. P., Boomer, Green, Pine and Balio, JJ.