Petitioner brings on this writ of habeas corpus claiming that Respondents violated his right to due process pursuant to the Constitution of the United States (see, United States Constitution, Amendment XIV, Section 1). After consideration of the record, the respective submissions of the parties and the applicable law, the writ is dismissed.

On September 7, 1995, Petitioner was convicted in Supreme Court, Queens County (Thomas, J.), of one count of Burglary in the Second Degree (Penal Law § 140.25), and sentenced to a period of incarceration of from eight years to life.

Petitioner was released to supervision by the State Division of Parole (hereinafter the "Division") on August 20, 2003. He agreed to adhere to all of the terms and conditions imposed by the Division. Prior to Petitioner's release, the Division informed him that his failure to so abide may result in the revocation of his parole (see Certificate of Release to Parole Supervision, dated June 3, 2007). [*2]

Petitioner has since been charged with six violations of the terms and conditions of his release (see Violation of Release Report and Case Summary, dated April 16, 2007): using a controlled substance, specifically heroin, without medical authorization; leaving his approved residence without notifying his parole officer; failing to participate, cooperate or regularly attend his mandated drug treatment program; attempting to evade substance abuse testing; failing to make his mandated office report, and using a controlled substance, specifically cocaine, without medical authorization. On January 16, 2007, he was declared delinquent with respect to his parole obligations (Id.).

On April 3, 2007, Petitioner was taken into custody by Division Parole Officer W. Bush under Parole Warrant No. 469831. On the same date, Petitioner was issued and served with a Notice of Violation.

On April 12, 2007, a preliminary parole revocation hearing was commenced before Hearing Officer Richard J. Albano. Parole Officer Bush testified that on January 16, 2007, Peitioner had tested positive for heroin use (Tr. 4). Officer Bush stated that he decided not to violate Peitioner, but instead held the violation(s) in abeyance pending Petitioner's successful completion of an inpatient drug treatment program at Phoenix House (Tr. 5).

Officer Bush further testified that he received a letter, which was offered into evidence, from one Sharon Cook, a Phoenix House employee, stating that Peitioner had discharged himself against clinical advice on March 5, 2007 (Tr. 9). Peitioner, however, produced evidence alleging that on March 12, 2007, he was referred from Phoenix House to another drug treatment program at Our Lady of Grace Medical Center (Tr. 12-13). In response, Officer Bush testified that such alleged evidence merely indicated that Petitioner was referred to a different program because he failed two toxicology tests; notwithstanding, he checked himself out of Phoenix House in violation of the terms of his parole (tr. 14-15).

Hearing Officer Albano suggested to adjourn in order for Officer Bush to bring forward Ms. Cook to determine whether Petitioner had discharged himself against clinical advice or whether he was referred to a different program (Tr. 20-21). Hearing Officer Albano further ordered that if he was unavailable to continue the hearing on April 16, 2007, then "the hearing may be held de novo on all charges." (Tr. 21).

On April 16, 2007, Petitioner's preliminary hearing was reconvened, de novo, before Hearing Officer Deborah Barnett. Officer Bush testified that neither the director of Phoenix House nor Ms. Cook were available to testify on this date because their testimony "would jeopardize the functioning of the program, and....they were not able to come" (Tr. 3).

Officer Bush then proceeded to charge Petitioner with the first charge on the Notice of Violation, relating to the January 16, 2007 drug test; he offered into evidence the toxicology test positive for cocaine and opiates (Tr. 5). Additionally, he testified that [*3]Petitioner had signed the document, acknowledging using cocaine and opiates (Id.).

Upon receipt and review of the documents, Hearing Officer Barnett found that there was probable cause on the first charge of the Violation of Release Report (Id.), in that Peitioner had failed the toxicology test (Tr. 31-32). She held that Petitioner's failure of the drug test constituted a violation "in an important respect" because it showed that Petitioner continued to use drugs while at Phoenix House and had failed to report to his parole officer within 24 hours of voluntarily leaving the program (Id.).

Since the April 16, 2007, de novo hearing, Petitioner had a final hearing on June 13, 2007, and was ordered held for twelve months. He is currently incarcerated at Ulster Correctional Facility (see Status Inquiry Summary, dated July 10, 2007).

Petitioner claims in the instant writ that there is insufficient evidence from the April 16, 2007, preliminary parole revocation hearing to find probable cause.

A preliminary parole revocation hearing is intended only to be summary in nature. See People ex. rel. Korn v. New York State Div. Of Parole, 274 AD2d 439 (2nd Dept. 2000). It

is, therefore, less formal than a criminal trial and only a minimal inquiry is necessary to determine whether there is probable cause to believe that a parolee has committed the acts which constitute a violation of his parole in an important aspect. See People ex. rel. Calloway v. Skinner, 33 NY2d 23 (1973); People ex. rel. Watson by Jaroff v. Commissioner, New York City Department of Correction, 149 AD2d 120 (1st Dept. 1989); People ex rel. Wallace v. State, 67 AD2d 1093 (4th Dept. 1979).

Parole violation hearings are essentially administrative proceedings, not criminal trials. See People ex. rel. Avers v. Lombard, 385 N.Y.S.2d 242 (Sup. Ct. Monroe County, 1976) (citing People ex. rel. Maggie v, Capsules, 28 NY2d 415 [1971]). The standard of proof that controls is whether the evidence is satisfactory to the initial hearing officer or to the Parole Board on revocation. Id. Stricter common law standards of proof do not apply and hearsay evidence is admissible, including letters, affidavits and other materials not necessarily admissible at a criminal trial. Id. (citing Morrissey v. Brewer, 408 U.S. 471 [1972]); see In the Matter of James Emmick. v. Eiders, 107 AD2d 1066 [4th Dept. 1985] (holding that hearsay is permissible in a preliminary parole revocation hearing); see also In the Matter of Louis Westcott v. New York State Division of Parole, 256 AD2d 1179 [4th Dept. 1998] (holding that failure to raise hearsay objection at the preliminary parole revocation hearing waives right to subsequently bring claim regarding denial of opportunity to cross-examine those witnesses).

The Court is thus limited in reviewing a hearing officer's decision. Only the sufficiency of the evidence on the record to support a finding of probable cause and whether proper procedures were followed may be considered. See NY Exec. Law § 259-i(3)(c)(viii). Issues of credibility of witnesses are for the hearing officer to determine. See People ex rel. Walker v. Hammock, 78 AD2d 369 (4th Dept. 1981). See also People [*4]ex. rel. Van Fosse v. Dillon, 72 AD2d 166, 169 (4th Dept. 1980) (holding that pursuant to NY Exec. Law § 259-i, subd. 5, "actions of the Parole Board are judicial functions and are not reviewable if performed in accordance with law (citing People ex rel. Wallace v. State of New York, supra). Upon finding that there was evidence in the record which, if believed, was sufficient to support a finding of probable cause and that required procedural rules were followed (see Morrissey v. Brewer, 408 U.S. 471 [1972]), the court's power to review is exhausted and it must dismiss the writ."See Wallace, supra.

Petitioner argument that probable cause was not established does not reach the bar. The Court finds otherwise. Sufficient evidence was adduced at the hearing to establish probable cause vis-a-vis Petitioner's violation of the terms and conditions of his parole, particularly in light of the fact that only minimal inquiry is mandated. See People ex. rel. Callosa v. Skinner, 33 NY2d 23 (1973); People ex. rel. Watson v. Commissioner of New York City's Dept. Of Corrections, 149 AD2d 120 (1st Dept. 1989); Wallace, supra. The Court will not disturb the finding of the hearing officer.

Petitioner's second argument that hearsay evidence was improperly admitted at the hearing is likewise without merit; hearsay evidence is admissible in a parole revocation hearing. See In the Matter of James Emmick. v. Eiders, 107 AD2d 1066 [4th Dept. 1985]

Petitioner states that "Hearing Officer Barnett did not state a reason for dispensing with the witness (that Hearing Officer Albano deemed necessary) as is necessary in order to introduce hearsay evidence into the record without confrontation," and claims that "there was no finding of good cause made by Hearing Officer Barnett concerning the witness' absence form the preliminary hearing on April 16, 2007 as is necessary for hearsay evidence to be admitted into the record." See Petition, at ¶¶ 11-12, citing People ex. rel. Peters v. Walker, 262 AD2d 1025 (4th Dept. 1999). Based on this record, neither argument has merit. At the April 16 hearing, Petitioner's counsel specifically inquired of Hearing Officer Barnett if she was "making a finding of good cause on the non-appearance from the witnesses from Phoenix House." (Tr. 7). In response, Hearing Officer Barnett stated, "yes, based on the parole officer's testimony that he had asked the counselors from Phoenix House to attend today, and their response," Id. Further, she noted that while Officer Bush did not subpoena these witnesses, his efforts were nonetheless "sufficient for a finding of good cause," and added "it is fairly common for counselors from drug programs to refuse to participate at these parole hearings." Id. At 7-8. Notably, the Phoenix House letter to which Petitioner refers was not relied on for the probable cause finding . Additionally, the sole purpose for calling the employees from Phoenix House was to determine whether Petitioner left the program without permission ( Tr. 20). However, Hearing Officer Barnett did not determine that Petitioner left Phoenix House without permission in making her final ruling (Tr. 31-32); therefore, Petitioner was not prejudiced in any way for not having the opportunity to cross-examine on this issue. Furthermore, Petitioner's own counsel offered in evidence letters from Our Lady of Mercy Medical Center and Phoenix House, which showed that Petitioner was continuing to use [*5]drugs while at Phoenix House and was, therefore, refereed to a more intensive detoxification program. (Id. and Tr. 8-10, 15-17). In making her final decision, Hearing Officer Barnett also considered the January 16, 2007, toxicology test which Petitioner failed (and which he signed acknowledging the use of cocaine and opiates). Therefore, the evidence provided by Officer Bush, the defense revelations and Petitioner's admissions, compounded by the fact that petitioner failed to timely report to his parole officer, supports the decision below, which, as it turns out, was not based solely on hearsay.

Under the totality of the circumstances, it is clear that Peitioner was not deprived of due process.

ORDERED, that the petition for a writ of habeas corpus is dismissed.

The foregoing constitutes the opinion and decision of the Court.

Dated: Bronx, New York

September 11 , 2007

________________________DOMINIC R. MASSARO,

Justice of the Supreme Court