parole violation in New York

2013Respondent concedes, and we agree, that petitioner is entitled to a new parole hearing due to the Board’s failure to use an available “Correctional Offender Management Profiling for Alternative Sanctions Risk and Needs Assessment” instrument (see Matter of Garfield v Evans, 108 AD3d 830 [2013]).

2013Respondent concedes, and we agree, that petitioner is entitled to a new parole hearing due to the Board’s failure to use an available “Correctional Offender Management Profiling for Alternative Sanctions Risk and Needs Assessment” instrument (see Matter of Garfield v Evans, 108 AD3d 830 [2013]).

2021Given that the discretionary determination resulted from respondent's appropriate consideration of relevant statutory factors, and as its determination does not evince "irrationality bordering on impropriety" ( Matter of Silmon v Travis , 95 NY2d 470, 476 [2000] [internal quotation marks and citation omitted]), further judicial review is precluded ( see Matter of Bush v Annucci , 148 AD3d 1392, 1393 [2017]; Matter of Mullins v New York State Bd. of Parole , 136 AD3d 1141 , 1142 [2016]).

2008The order of the Appellate Division should be affirmed, without costs. *778 The courts below applied the correct legal standards and properly considered the Board of Parole’s written determination, which, when evaluated in the context of the parole hearing transcript, demonstrated that the Board considered the required statutory factors (see Executive Law § 259-i; Matter of Silmon v Travis, 95 NY2d 470, 476 [2000]).

2014Haderxhanji v New York State Bd. of Parole, 97 AD2d 368, 369 [1983]; see also Matter of Siao-Pao v Dennison, 11 NY3d 777, 778 [2008] [whether the Board considered the proper factors should be assessed based on the “written determination . . . evaluated in the context of the parole hearing transcript” (emphasis added)]).

2014Haderxhanji v New York State Bd. of Parole, 97 AD2d 368, 369 [1983]; see also Matter of Siao-Pao v Dennison, 11 NY3d 777, 778 [2008] [whether the Board considered the proper factors should be assessed based on the “written determination . . . evaluated in the context of the parole hearing transcript” (emphasis added)]).

2012Petitioner was given notice of the charges against him at the time of the parole violation proceeding; therefore, he had an opportunity to be heard and to show, if possible, that he did not violate the parole condition or that mitigating circumstances suggested that the violation did not warrant revocation (see generally Morrissey v Brewer, 408 US 471, 488 [1972]).

2012It is axiomatic that in order to meaningfully exercise these rights, a parolee must, as in the case of a criminal defendant, have “a rational and factual understanding of the proceedings against him” and be able to “consult with his lawyer with a reasonable degree of rational understanding.” (See People v Pena, 251 AD2d at 30 .) As the Morrissey Court explained, the purpose of a hearing is to “assure that the finding of a parole violation will be based on verified facts and that the exercise of discretion will be informed by an accurate knowledge of the parolee’s behavior.” ( 408 US at 484 .)

2007In sum, respondent considered the appropriate statutory factors set forth in Executive Law § 259-i and its decision does not evince “ ‘irrationality bordering on impropriety’ ” (Matter of Silmon v Travis, 95 NY2d 470, 476 [2000], quoting Matter of Russo v New York State Bd. of Parole, 50 NY2d 69, 77 [1980]).

2005In view of this, we cannot conclude that the denial of his application evinces “ ‘irrationality bordering on impropriety’ ” (Matter of Silmon v Travis, 95 NY2d 470, 476 [2000], quoting Matter of Russo v New York State Bd. of Parole, 50 NY2d 69, 77 [1980]; see Matter of Atkins v New York State Bd. of Parole, 289 AD2d 667, 668 [2001]).

2012Defendant was eligible for consideration for resentencing even though he had been released from custody on his underlying drug conviction but reincarcerated for a parole violation (see People v Paulin, 17 NY3d 238 [2011]).

2011Supreme Court erred in denying defendant’s application on the ground that defendant was ineligible to apply for resentencing because he was incarcerated at that time based on a parole violation. “[Prisoners who have been paroled, and then reincarcerated for violating their parole, are not for that reason barred from seeking relief under [CPL 440.46]” (People v Paulin, 17 NY3d 238, 242 [2011]).

2014Thus, we find no abuse of discretion or extraordinary circumstances that would warrant a reduction of the sentence (see People v Sheppard, 119 AD3d 986, 987 [2014]; People v Castellano, 100 AD3d 1256 , 1258 [2012], lv denied 20 NY3d 1096 [2013]).

2014Thus, we find no abuse of discretion or extraordinary circumstances that would warrant a reduction of the sentence (see People v Sheppard, 119 AD3d 986, 987 [2014]; People v Castellano, 100 AD3d 1256 , 1258 [2012], lv denied 20 NY3d 1096 [2013]).

2016In any event, the conduct of the officers in searching the premises for defendant and, following his arrest, in searching his pockets “was rationally and reasonably related to the performance of the parole officer [s’] duty” (People v Huntley, 43 NY2d 175, 181 [1977]), and thus the officers’ conduct would have been permissible even in the absence of a parole violation warrant (see People v June, 128 AD3d 1353, 1354 [2015], lv denied 26 NY3d 931 [2015]; People v Nappi, 83 AD3d 1592, 1593-1594 [2011], lv denied 17 NY3d 820 [2011]).

2016In any event, the conduct of the officers in searching the premises for defendant and, following his arrest, in searching his pockets “was rationally and reasonably related to the performance of the parole officer [s’] duty” (People v Huntley, 43 NY2d 175, 181 [1977]), and thus the officers’ conduct would have been permissible even in the absence of a parole violation warrant (see People v June, 128 AD3d 1353, 1354 [2015], lv denied 26 NY3d 931 [2015]; People v Nappi, 83 AD3d 1592, 1593-1594 [2011], lv denied 17 NY3d 820 [2011]).

2009Likewise, the arrest and detention of defendant in the absence of a parole violation warrant, although in violation of Executive Law § 259-i (3) (a) (i), does not require suppression of the statements made and evidence recovered as a result of defendant’s detention by the DOE The technical violation of the Executive Law did not infringe upon defendant’s constitutional right to be free from unreasonable searches and seizures, and thus the application of the exclusionary rule is not warranted under these circumstances (see People v Lopez, 288 AD2d 70 , 71 [2001], lv denied 97 NY2d 706 [2002]; Pe

2008(Dyla, 142 AD2d 423, 433-434, 439 [1988]; accord People v Lopez, 288 AD2d 70 , 71 [1st Dept 2001], lv denied 97 NY2d 706 [2002], citing Dyla, supra.) In reaching this conclusion, the Dyla Court specifically held that Executive Law § 259-i (3) (a) (i) is “more in the nature of a procedural or ‘housekeeping’ rule than a requirement designed to protect individual liberty.” (Dyla, 142 AD2d at 441 .) It is neither jurisdictional nor affects a substantial right, and there is “no rule of constitutional law which requires that a warrant must be issued prior to the arrest of a parolee known to have com

2020Matthews v New York State Div. of Parole , 95 NY2d 640, 643 [2001]; People v Singh , 169 AD3d 831 , 832 [2019]).

2019Matthews v New York State Div. of Parole , 95 NY2d at 645 ; see Matter of Nunez v New York State Parole Div. , 284 AD2d 333 ).

2016In any event, the conduct of the officers in searching the premises for defendant and, following his arrest, in searching his pockets “was rationally and reasonably related to the performance of the parole officer [s’] duty” (People v Huntley, 43 NY2d 175, 181 [1977]), and thus the officers’ conduct would have been permissible even in the absence of a parole violation warrant (see People v June, 128 AD3d 1353, 1354 [2015], lv denied 26 NY3d 931 [2015]; People v Nappi, 83 AD3d 1592, 1593-1594 [2011], lv denied 17 NY3d 820 [2011]).

2016In any event, the conduct of the officers in searching the premises for defendant and, following his arrest, in searching his pockets “was rationally and reasonably related to the performance of the parole officer [s’] duty” (People v Huntley, 43 NY2d 175, 181 [1977]), and thus the officers’ conduct would have been permissible even in the absence of a parole violation warrant (see People v June, 128 AD3d 1353, 1354 [2015], lv denied 26 NY3d 931 [2015]; People v Nappi, 83 AD3d 1592, 1593-1594 [2011], lv denied 17 NY3d 820 [2011]).

2016A parole violation warrant by itself justifies the entry of the residence for the purposes of locating and arresting the defendant therein (see Cook v O’Neill, 803 F3d 296, 300 [2015]), provided that, as here, the officers “reasonably believe [d] the defendant to be present” in the premises (CPL 120.80 [4]).

2016A parole violation warrant by itself justifies the entry of the residence for the purposes of locating and arresting the defendant therein (see Cook v O’Neill, 803 F3d 296, 300 [2015]), provided that, as here, the officers “reasonably believe [d] the defendant to be present” in the premises (CPL 120.80 [4]).

2016In any event, the conduct of the officers in searching the premises for defendant and, following his arrest, in searching his pockets “was rationally and reasonably related to the performance of the parole officer [s’] duty” (People v Huntley, 43 NY2d 175, 181 [1977]), and thus the officers’ conduct would have been permissible even in the absence of a parole violation warrant (see People v June, 128 AD3d 1353, 1354 [2015], lv denied 26 NY3d 931 [2015]; People v Nappi, 83 AD3d 1592, 1593-1594 [2011], lv denied 17 NY3d 820 [2011]).

2016In any event, the conduct of the officers in searching the premises for defendant and, following his arrest, in searching his pockets “was rationally and reasonably related to the performance of the parole officer [s’] duty” (People v Huntley, 43 NY2d 175, 181 [1977]), and thus the officers’ conduct would have been permissible even in the absence of a parole violation warrant (see People v June, 128 AD3d 1353, 1354 [2015], lv denied 26 NY3d 931 [2015]; People v Nappi, 83 AD3d 1592, 1593-1594 [2011], lv denied 17 NY3d 820 [2011]).

2015Contrary to defendant’s contention, viewing the evidence in light of the elements of the assault count as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict finding that defendant intended to prevent the sergeant from performing his lawful duty, thereby injuring him (see Penal Law § 120.08; People v Coombs, 56 AD3d 1195 , 1196 [2008], lv denied 12 NY3d 782 [2009]), is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).

2015Contrary to defendant’s contention, viewing the evidence in light of the elements of the assault count as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict finding that defendant intended to prevent the sergeant from performing his lawful duty, thereby injuring him (see Penal Law § 120.08; People v Coombs, 56 AD3d 1195 , 1196 [2008], lv denied 12 NY3d 782 [2009]), is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).

2015Contrary to defendant’s contention, viewing the evidence in light of the elements of the assault count as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict finding that defendant intended to prevent the sergeant from performing his lawful duty, thereby injuring him (see Penal Law § 120.08; People v Coombs, 56 AD3d 1195 , 1196 [2008], lv denied 12 NY3d 782 [2009]), is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).

2015Contrary to defendant’s contention, viewing the evidence in light of the elements of the assault count as charged to the jury (see People v Danielson, 9 NY3d 342, 349 [2007]), we conclude that the verdict finding that defendant intended to prevent the sergeant from performing his lawful duty, thereby injuring him (see Penal Law § 120.08; People v Coombs, 56 AD3d 1195 , 1196 [2008], lv denied 12 NY3d 782 [2009]), is not against the weight of the evidence (see generally People v Bleakley, 69 NY2d 490, 495 [1987]).