
    The People of the State of New York ex rel. Leo Murray, Appellant, v New York State Board of Parole et al., Respondents.
    Argued June 2, 1980;
    decided June 24, 1980
    
      APPEARANCES OF COUNSEL
    
      John M. Lockwood for appellant.
    
      Robert Abrams, Attorney-General (Charles S. Kleinberg and Gerald J. Ryan of counsel), for respondents.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, without costs.

On oral argument, relator limited his submission to the contention that in adjudging him in violation of parole the State Board of Parole employed a constitutionally impermissible standard of proof, to wit, a preponderance of the evidence only (9 NYCRR 8005.19 [e]). Inasmuch as this issue was not raised in the Supreme Court or at the Appellate Division it may not be raised in our court (Cohen and Karger, Powers of the New York Court of Appeals [rev ed], § 169, pp 641-643).

In his brief relator also contends, likewise for the first time, that the determination of the Board of Parole was not supported by substantial evidence, a lesser standard of proof than preponderance of the evidence. Even if it be assumed that relator’s failure to raise this issue below does not preclude its consideration in our court, we conclude that there was substantial evidence in this record to sustain the determination of the Board of Parole. (Relator has abandoned the ground on which Supreme Court granted his petition but which was rejected by the Appellate Division — that dismissal of the criminal charges pursuant to CPL 170.55 precluded revocation of his parole based on the same underlying transaction.)

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed, without costs, in a memorandum.  