Dukes v. New York State Board of Parole

Determination of respondent Board of Parole, dated November 28, 1989, that petitioner violated three conditions of his parole, unanimously confirmed, the petition denied, and the proceeding brought pursuant to CPLR article 78 (transferred to this Court by order of Supreme Court, New York County [Seymour Schwartz, J.], entered November 29, 1991) dismissed, without costs.

Respondent’s determination that petitioner violated a condition of parole by being in possession of stolen property is supported by a preponderance of the evidence (Executive Law § 259-i [3] [f] [viii]), including the arresting officer’s testimony that he observed petitioner remove boards of lumber from a lumber yard and that he was informed by representatives of the lumber yard that petitioner did not have permission to do so. We note that the " 'legal residuum rule’ ” urged by petitioner is no longer followed (Matter of Eagle v Paterson, 57 NY2d 831, 833). Concur—Sullivan, J. P., Wallach, Kupferman and Kassal, JJ.