Cobenais v. Smith ( 1984 )

Judgment unanimously modified and, as modified, affirmed and matter remitted to the hearing officer for further proceedings, in accordance with the following memorandum: At petitioner’s final parole revocation hearing, the hearing officer stated that he was dismissing the first charged violation because of insufficient evidence and he sustained the second. Later, he recommended to the Parole Board that both charges be sustained, that the petitioner’s parole be revoked and that he be held for a period of two years. In the ensuing CPLR article 78 proceeding, Special Term ordered that “the Division of Parole hold a de novo * * * hearing for Petitioner with respect to the second charged violation only.”

The court improperly directed the hearing. There is no contention that the evidence was insufficient to sustain the second charge or that any error was committed in connection with that charge. The court, therefore, should have simply remitted the matter to the hearing officer for a new recommendation based on the second charge only. (Appeal from judgment of Supreme Court, Wyoming County, Newman, J. — art 78.) Present — Callahan, J. P., Doerr, Boomer, Green and Schnepp, JJ.