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Parole Conditions Did Not Require Parolee to Report Brief, Incidental Contact with Children to His Parole Officer—Parole Violation Determination Annulled

The Third Department annulled the finding that petitioner had violated his parole by not reporting brief contact with a child.  Petitioner was doing construction work when a coworker’s daughter emerged briefly approached petitioner and the coworker:

“It is well established that a parole revocation decision will be upheld so long as ‘the procedural requirements were followed and there is evidence which, if credited, would support such determination'” … . Notably, in order to warrant revocation, the alleged parole violation must be supported by a preponderance of the evidence (see Executive Law § 259-i [3]; [f]…), which we find lacking in the record before us. * * *

The parole conditions did not clearly require petitioner to report such an insignificant encounter to his parole officer, however, and petitioner testified that he did not know that he needed to do so. Further, while the coworker’s children were occasionally present during lunch breaks at the work site, they largely remained outside the eating area and there was no showing that petitioner had any contact with the children during such times. In view of this, petitioner’s parole conditions did not plainly require him to report such information to his parole officer. Accordingly, given the absence of probative evidence supporting the charge that petitioner failed to truthfully report his activities to his parole officer, the determination finding that he violated his parole in this regard must be annulled… . Matter of Peck v Evans, 2014 NY Slip Op 04107, 3rd Dept 6-5-14

 

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