Petitioner moved by writ of habeas corpus and Article 78 for an order vacating his parole warrant and releasing him from the custody of Department of Corrections and Community Supervision (DOCCS). By petition submitted February 26, 2013, petitioner asserted that he is being illegally detained because Respondent DOCCS deprived him of a proper final parole revocation hearing in violation of his due process rights under Executive Law § 259-i (3) (f) (x) (xi). Upon review of the parties' respective papers submitted in connection with this matter, the petitions are dismissed in their entirety.

On November 8, 1989, judgment was entered against petitioner in Supreme Court, Westchester County, upon his conviction of sodomy in the first degree, and sexual abuse in the first degree. Petitioner was sentenced to twenty-five years imprisonment with a mandatory minimum period of twelve and one-half years for the sodomy conviction, and seven years imprisonment with a mandatory minimum period of three and one-half years for the sexual abuse [*2]conviction, both sentences to be served concurrently.

On May 6, 2010, petitioner was conditionally released and scheduled to be supervised by DOCCS through March 9, 2014. In connection with his conditional release, petitioner signed a document entitled "Certificate of Release to Parole Supervision" (see Respondent's Exhibit A). By signing this document, petitioner agreed to comply with the terms and conditions set forth in it, which included the following:

CONDITIONS OF RELEASE

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2. I will make office and/or written reports as directed.

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5. I will reply, promptly, fully, and truthfully to any inquiry of or communication by my Parole Officer or other representative of the Division of Parole.

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8. I will not behave in such manner as to violate the provisions of any law to which I am subject which provide for a penalty of imprisonment nor will my behavior threaten the safety or the well-being of myself or others.

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13. I will fully comply with the instructions of my Parole Officer and obey such special additional writtenconditions as he, a Member of the Board of Parole or an authorized representative of the Division of Parole, may impose.

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DOCCS contends that on June 2, 2011, petitioner failed to promptly, fully and truthfully respond to his parole officer's inquiry in violation of Rule 5. DOCCS further contends that on June 8, 2011, petitioner failed to comply with the 8:00 PM curfew imposed by PO Conyers in accordance with Rule 13.

Based on these circumstances, DOCCS declared petitioner delinquent on June 3, 2011. On June 9, 2011, DOCCS issued a Violation of Release Report charging petitioner with violating the above-stated conditions of parole (see Respondent's Exhibit B).

On June 10, 2011, DOCCS issued Parole Warrant No. 606302 (the warrant), executed, and lodged against petitioner (see Respondent's Exhibit C). The same day, DOCCS served petitioner with a copy of the Violation of Release Report (see Respondent's Exhibit B) and Notice of Violation (see Respondent's Exhibit D). Petitioner then invoked his right to a preliminary parole revocation hearing.

On June 21, 2011, DOCCS issued a Supplementary Violation of Release Report charging petitioner with multiple violations in connections with verbal, physical, and sexual abuse alleged to have occurred on April 9, 2011, April 27, 2011, May 20, 2011, and May 22, 2011 (see Respondent's Exhibit B).

On June 28, 2011, a preliminary parole revocation hearing was held at the Rikers Island Judicial Center. The hearing officer found probable cause that petitioner violated at least one of the parole conditions in an important respect (see Respondent's Exhibit E).

On July 11, 2011, DOCCS was scheduled to commence petitioner's final parole revocation hearing. Because of petitioner's conflicting court appearance, the final hearing was [*3]adjourned until August 9, 2011. It was further adjourned until September 12, 2012, for discovery and motions.

The final rehearing commenced on September 12, 2011, was continued on October 14, 2011, and November 9, 2011, before concluding on December 6, 2011. By decision dated December 14, 2011, DOCCS sustained nine parole violation charges (5, 6, 8, 9, 10, 11, 14, 15, and 16), and recommended a time assessment equal to his maximum expiration date. The Board of Parole affirmed DOCCS's recommendation.

On January 6, 2012, petitioner filed a verified amended petition for a writ of habeas corpus in connection with parole warrant 606302 claiming that DOCCS failed to complete the final revocation hearing within 90 days. On March 16, 2012, petitioner filed a second verified amended petition arguing that the final hearing violated Mayfield v Evans (93 AD3d 98, 1st Dept 2012). By decision dated May 29, 2012, Justice Harold Adler dismissed the first petition and sustained the second, ordering DOCCS to conduct a new time assessment. DOCCS appealed Justice Adler's decision on the Mayfield issue, which is currently pending.^[FN1]

Regarding the above-captioned petition (Index No. 340739-2012), the initial writ was dated August 29, 2012. Petitioner subsequently filed an amended verified petition dated September 8, 2012, followed by a second verified amended petition dated October 16, 2012.

On September 7, 2012, filed the above-captioned order to show cause/ Article 78 captioned (Index No. 340784-2012).

Finally, on October 23, 2012, petitioner filed a fourth writ of habeas corpus in relation to parole warrant 606302. That writ, however, was filed in Dutchess County Supreme Court (Index No. 4987/12), and is currently pending.

As a preliminary matter, this court notes that the only petition properly before it is the second verified amended writ under Index No. 340739-2012. Petitioner's protestations to the contrary, the parties agreed that it was to supercede all previous petitions as well as the order to show cause/ Article 78 under Index No. 340784-2012. Regardless of such consent, however, this court notes several procedural bars to considering any previously filed petitions.

The Attorney General correctly notes that as a matter of law, petitioner's filing of the second verified amended petition rendered moot both the initial writ and the amended verified petition (Plaza PH2001, LLC v Plaza Residential Owner, LP, 98 AD3d 89 [1st Dept 2012]; Stewart v Strauss, 11 Misc 2d 433 [Manhattan Mun Ct 1958]). The Attorney General further argues, again correctly, that the claims petitioner asserts in it are barred by res judicata, a pending appeal, or are duplicative of those raised in his second amended petition. Petitioner's claim that DOCCS failed to timely complete his final parole revocation hearing was, as noted above, raised in a prior petition and dismissed by Judge Adler. Having been previously litigated, it must now be dismissed. As for petitioner's Mayfield argument, that issue is currently on appeal to the First Department by the respondent. Pursuant to CPLR 3211 (a) (4), it too must be dismissed. More [*4]significantly, petitioner's claim that DOCCS failed to comply with Judge Adler's decision granting him a new time assessment must be dismissed because it is precisely the same claim. That decision and order, issued under an Article 78 petition, is subject to an automatic stay pursuant to CPLR 5519 (a) (1) triggered by respondent's filing of a notice of appeal.

Regarding petitioner's claims concerning the supplemental violation of petitioner release report (relating to his delinquency date and Parole Officer Conyers final hearing testimony), they are duplicative of those raised in his second amended petition. Accordingly, then, only two issues remain: whether a substantial evidence claim may be heard by the Supreme Court or must be transferred to the Appellate Division, and the propriety of petitioner's final parole revocation hearing.

A. Substantial Evidence Claim

As to the first issue, this court finds nothing requiring the matter be transferred to the Appellate Division. Ordinarily, when a colorable substantial evidence claim is asserted, the matter should be transferred to the Appellate Division for resolution (see CPLR 7804 [g]). Whether or not petitioner's claim arises from substantial evidence, however, is a matter within the discretion of the court. To be sure, petitioner's use or non-use of the phrase "substantial evidence" is hardly controlling (Matter of Bonded Concrete, Inc. v Town Bd. of Town of Rotterdam, 176 AD2d 1137 [3d Dept 1991]).

Here, petitioner has abjectly failed to raise any credible substantial evidence claim. Petitioner's chief complaint appears to be that a witness incorrectly testified to the date on which the alleged violations occurred. But merely because a witness was unable to recall whether the alleged violation occurred on May 20 or 21 is insignificant, especially where petitioner had an opportunity to cross-examine said witness (see Exhibit "F" ¶¶ 12-13). Accordingly, since petitioner's substantial evidence claim is wholly meritless, this court will retain and entertain the petition.

B. Due Process Claim

In Morrisey v Brewer (408 US 471 [1972]), the Supreme Court found that before the government could revoke an individual's parole, due process requires (a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a neutral and detached' hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the fact finders as to the evidence relied on and reasons for revoking parole (Morrisey, 408 US 471). Executive Law § 259-i insures that the New York parole process complies with these due process requirements, and that parole decisions are not subject to review when they are made in accordance with the law (see Executive Law § 259-i [5]).

Petitioner's final parole revocation hearing was conducted in strict compliance with Executive Law § 259-i. He received written notice of the claimed violations of parole on June 10, 2011 (see Notice of Violation, 1-4). He was subsequently provided with sufficient notice of the alleged parole violations against him, was afforded an opportunity to be heard, as well as present [*5]witnesses and evidence on his own behalf (see Preliminary Violation Hearing Decision and Summary). Upon the conclusion of the preliminary hearing, the hearing officer informed petitioner that there was sufficient probable cause to believe he had violated at least one of his parole conditions. After a lengthy and thorough final parole revocation hearing, the administrative law judge (ALJ) notified petitioner of the decision to revoke his parole, and recommended he receive a time assessment equal to his maximum expiration date (see Parole Revocation Decision Notice, at 2).

The record clearly reflects that petitioner was afforded both a preliminary and a final revocation hearing, and was represented by counsel at each adjournment of the final hearing. At those proceedings, counsel was permitted to fully cross examine the witnesses regarding any inconsistent or contradictory testimony. Moreover, counsel, by failing to request that a witness be recalled effectively waived it and is thereby precluded from asserting it now (People ex rel. Chesner v Warden, 71 AD3d 499 [1st Dept 2010]). In any event, given the overwhelming evidence supporting the ALJ's decision, such failure is of no moment. Petitioner's remaining claims, including Brady and Rosario, are entirely baseless.

On a final note, this court is compelled to bring attention to petitioner's frivolous, scurrilous, and scathing ad hominem attacks on the Assistant Attorney

General. Writings received by this court that came on an almost daily basis contain incessant claims of all sorts of alleged ethical violations. They have all been made part of the record of this proceeding, and have been reviewed to the extent they reference many of the substantive claims asserted in his petitions. Simply stated, there is not a scintilla, an iota, or a shred of support for it.

Based on the reasons stated above, this court finds DOCCS properly conducted petitioner's final parole revocation hearing as required by Executive Law 259-i (3) (f) (x) (xi). Petitioner's writ of habeas corpus and order to show cause/ Article 78 must therefore be dismissed in their entirety.

This constitutes the decision and order of the court.

The clerk of the court is directed to forward a copy of this decision to the

defendant at his place of incarceration.

Dated: April 26, 2013

E N T E R

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Richard Lee Price, J.S.C.