People ex rel. Peters v. Walker

262 A.D.2d 1025, 691 N.Y.S.2d 847, 1999 N.Y. App. Div. LEXIS 7242

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 18, 1999
• Status: Published

Opinion

—Judgment unanimously affirmed without costs. Memorandum: Supreme Court properly denied the petition seeking a writ of habeas corpus. The toxicology report was improperly admitted in evidence because the Hearing Officer did not determine that it was reliable, nor did he state his reason for dispensing with the need to produce a witness to testify regarding its contents (see, People ex rel. McGee v Walters, 62 NY2d 317, 322-323; cf., People ex rel. Wilt v Meloni, 170 AD2d 989, 990, lv dismissed 77 NY2d 973). The remaining evidence, however, was sufficient to prove by a preponderance of the evidence that relator violated a condition of parole that he not consume alcohol (see, Matter of Hilbourne v Rodriguez, 155 AD2d 917, 918; Executive Law § 259-i [3] [f] [viii]; 9 NYCRR 8005.20). The contention of relator that he was denied due process because the Board of Parole did not have a complete transcript of the revocation hearing lacks merit. There is no requirement that the Board of Parole review the transcript of the revocation hearing before making its final decision (see, People ex rel. Smith v Mantello, 167 AD2d 912). Finally, the Hearing Officer set forth his reasons for recommending that relator complete the maximum term of his sentence, and there is no basis to conclude that the disposition is excessive (see, People ex rel. Smith v Mantello, supra). (Appeal from Judgment of Supreme Court, Cayuga County, Corning, J. — Habeas Corpus.) Present — Pine, J. P., Hayes, Pigott, Jr., Scudder and Balio, JJ.