Westcott v. New York State Board of Parole

256 A.D.2d 1179, 682 N.Y.S.2d 499, 1998 N.Y. App. Div. LEXIS 14322

Opinion

—Determination unanimously confirmed without costs and petition dismissed. Memorandum: Petitioner appeals from a final parole revocation determination by respondent New York State Board of Parole (Board of Parole). Petitioner’s challenge to the finding of probable cause at the preliminary parole revocation hearing is rendered moot by the final parole revocation determination (see, People ex rel. Chavis v McCoy, 236 AD2d 892; Matter of Collins v Rodriguez, 138 AD2d 809). Although petitioner has statutory and due process rights to confront and cross-examine adverse witnesses (see, Executive Law § 259-i [3] [f| [v]; Morrissey v Brewer, 408 US 471, 488-489; People ex rel. McGee v Walters, 62 NY2d 317, 319), petitioner did not object to the admission of hearsay statements of two witnesses, and failed to seek cross-examination of those witnesses. Thus, he waived his present argument that he was denied the opportunity to cross-examine those witnesses (see, People ex rel. Hall v Dufrain, 190 AD2d 917). Based upon the testimony of the witnesses, including petitioner, as well as petitioner’s plea of guilty with an explanation, we conclude that the determination of the Board of Parole that petitioner violated the conditions of his parole is supported by substantial evidence (see, Matter of Castro v Russi, 216 AD2d 968, lv denied 86 NY2d 711). (CPLR art 78 Proceeding Transferred by Order of Supreme Court, Livingston County, Cicoria, J.) Present — Pine, J. P., Hayes, Wisner, Pigott, Jr., and Boehm, JJ.