PEOPLE EX REL. McWHINNEY v. SMITH

Judgment unanimously affirmed without costs. Memorandum: On appeal, relator has abandoned the contention advanced in his petition seeking a writ of habeas corpus. Instead, he asserts that the New York State Division of Parole failed to prove, by a preponderance of the evidence, that relator violated the terms of his parole. That issue is not properly before us because it was not advanced at Supreme Court and is not encompassed within the issues raised by the petition (see, Byrne Family Mgt. v Village of Phoenix, 190 A.D.2d 1032). Were we to address that issue, we would find it to be lacking in merit.