People ex rel. Larocco v. Warden

82 A.D.3d 604, 919 N.Y.2d 328

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 24, 2011
• Status: Published

Opinion

The determination that petitioner violated his parole by stalking and harassing the 17-year-old victim was supported by substantial evidence (see generally People ex rel. Vega v Smith, 66 NY2d 130, 139 [1985]). The hearing testimony established that the victim was frightened, annoyed and alarmed by petitioner’s repeated conduct over a period of months, and petitioner’s intent could be inferred from the surrounding circumstances (see Matter of Reiss v Reiss, 221 AD2d 280 [1995], lv denied 89 NY2d 801 [1996]). Respondent’s decision to impose a 24-month time assessment rather than accept the administrative law judge’s (AU) recommendation of an 18-month assessment was a provident exercise of discretion. The recommendation of the ALJ is advisory and not binding on respondent (see People ex rel. Coleman v Smith, 75 AD2d 706, 707 [1980], lv denied 50 NY2d 804 [1980]). Concur — Gonzalez, PJ., Catterson, Richter, Abdus-Salaam and Román, JJ.