JACOBY, BRENT v. EVANS, ANDREA ( 2011 )

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
539
TP 10-02521
PRESENT: CENTRA, J.P., FAHEY, LINDLEY, GORSKI, AND MARTOCHE, JJ.
IN THE MATTER OF BRENT JACOBY, PETITIONER,
V MEMORANDUM AND ORDER
ANDREA EVANS, CHAIRWOMAN, NEW YORK STATE
DIVISION OF PAROLE, RESPONDENT.
BRENT JACOBY, PETITIONER PRO SE.
ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (MARLENE O. TUCZINSKI
OF COUNSEL), FOR RESPONDENT.
Proceeding pursuant to CPLR article 78 (transferred to the
Appellate Division of the Supreme Court in the Fourth Judicial
Department by order of the Supreme Court, Oneida County [Bernadette T.
Clark, J.], entered December 22, 2010) to review a determination of
respondent. The determination found that petitioner violated the
conditions of postrelease supervision and imposed a time assessment of
18 months.
It is hereby ORDERED that the petition is unanimously granted in
part by annulling that part of the determination finding that
petitioner is a Category 1 violator pursuant to 9 NYCRR 8005.20 and as
modified the determination is confirmed without costs.
Memorandum: In this proceeding transferred to us from Supreme
Court pursuant to CPLR 7804 (g), petitioner contends that the
determination of the Administrative Law Judge (ALJ) following a
revocation hearing that petitioner violated the conditions of
postrelease supervision (PRS) by possessing a weapon is not supported
by substantial evidence. We reject that contention. It is undisputed
that a parole officer assigned to supervise petitioner found a Sai, a
three-pronged martial arts weapon, in a drawer in petitioner’s
apartment, where he lived alone. Although petitioner claimed that the
weapon belonged to his former girlfriend, who had moved out of his
apartment several days before the weapon was found, petitioner
admitted at the hearing that he knew the Sai was in his apartment and
that he took no steps to return it to his former girlfriend or
otherwise to dispose of it. Even assuming, arguendo, that
petitioner’s former girlfriend owned the Sai, we conclude that such
fact alone does not exonerate petitioner inasmuch as he may be found
to possess an item that is owned by someone else.
Petitioner further contends that the Sai is not a dangerous
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TP 10-02521
instrument or deadly weapon within the meaning of the Penal Law
because it is not readily capable of causing serious physical injury
or death. Whether the Sai qualifies as a dangerous instrument or
deadly weapon is of no moment, however, because the conditions of
petitioner’s PRS prohibited him from possessing “any instrument
readily capable of causing physical injury without a satisfactory
explanation for ownership, possession or purchase.” There was ample
evidence at the hearing establishing that the Sai was capable of
causing physical injury and that petitioner lacked a satisfactory
explanation for his possession of it.
We agree with petitioner that the ALJ erred in designating him as
a Category 1 violator within the meaning of 9 NYCRR 8005.20. We
therefore grant the petition in part and modify the determination
accordingly. Contrary to petitioner’s contention, however, the 18-
month time assessment imposed by the ALJ is neither unauthorized nor
illegal. As respondent correctly notes, 9 NYCRR 8005.20 applies to
individuals on parole and conditional release, not those serving a
period of PRS, such as petitioner (see 9 NYCRR 8005.1 et seq.).
Violators of PRS are subject to Penal Law § 70.45 (1), pursuant to
which “a violation of any condition of supervision occurring at any
time during such period of [PRS] shall subject the defendant to a
further period of imprisonment up to the balance of the remaining
period of [PRS], not to exceed five years” (see Executive Law § 259–i
[3] [f] [x] [D]). Here, the time assessment of 18 months was shorter
than the remaining period of PRS.
We have reviewed petitioner’s remaining contentions and conclude
that they lack merit.
Entered: May 6, 2011 Patricia L. Morgan
Clerk of the Court