Paulsen v. New York State Bd. of Parole

• Decision Date: 15 October 1974
• Parties: In the Matter of Paul PAULSEN, Respondent, v. NEW YORK STATE BOARD OF PAROLE, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 828

359 N.Y.S.2d 828

46 A.D.2d 661

In the Matter of Paul PAULSEN, Respondent, v. NEW YORK STATE BOARD OF PAROLE, Appellant.

Supreme Court, Appellate Division, Second Department.

Oct. 15, 1974.

Louis J. Lefkowitz, Atty. Gen., New York City (David L. Birch, Deputy Asst. Atty. Gen., and Samuel A. Hirshowitz, New York City, of counsel), for appellant.

William E. Hellerstein and Donald H. Zuckerman, New York City, for respondent.

Before GULOTTA, P.J., and MARTUSCELLO, LATHAM, SHAPIRO and HOPKINS, JJ.

MEMORANDUM BY THE COURT.

In this proceeding pursuant to article 78 of the CPLR to compel the State Board of Parole to vacate its determination revoking petitioner's parole, after a final revocation hearing, to restore him to parole supervision and for related relief, the appeal is from a judgment of the Supreme Court, Westchester County, entered July 8, 1974, which, Inter alia, annulled the determination and restored petitioner to parole supervision.

Judgment reversed, on the law, without costs, petition dismissed and determination confirmed.

On May 15, 1970 petitioner was convicted of grand larceny in the second degree and sentenced to an indeterminate prison term not to exceed five years. On August 31, 1971 he was convicted in a Federal court of perjury and was sentenced to a term of four years, to be served consecutively to said State indeterminate sentence.

On January 20, 1972, having been granted parole on the State sentence, petitioner was released from State custody to a Federal warrant. He was then incarcerated in Federal prison, where he remained until April 17, 1973, at which time he was released to a Federal halfway house in New York City, where he remained until July 16, 1973, at which time he was placed on Federal parole.

Thereafter, petitioner reported to a Federal parole officer and he claims he informed the latter of his having been questioned by New York City and Rhode Island police. Although upon his release from State prison he signed conditions of parole, in which he promised to report to the New York State Division of Parole after his release from Federal authorities, he never, in fact, did so report.

On August 7, 1973 petitioner was taken into custody pursuant to a New York State parole violation warrant. A final parole revocation hearing was conducted on December 18, 1973, at which time two of eleven parole violation charges were sustained (charges 1 and 10). Charge number 1 alleged that petitioner had failed to make his arrival report to the New York Parole Office on July 17, 1973. Charge number 10 alleged that petitioner had failed to notify his parole officer that after his release on parole he was interviewed by detectives of the New York City Police Department and officers of the Rhode Island State Police. These charges constituted alleged violations of provisions 1 and 12, respectively, of petitioner's certificate of parole, dated and signed by him on January 19, 1972.

On December 19, 1973, appellant revoked petitioner's parole and directed that he be denied parole release consideration until July, 1974.

Petitioner then instituted the instant proceeding. Special Term found that although there was 'sufficient evidence in the record to indicate that the petitioner was aware of his obligation to report,' still, the penalty imposed by the Parole Board was disproportionate to his offense. Accordingly, Special Term (1) vacated the Parole Board's determination, (2) cancelled the declaration of delinquency, (3) restored petitioner to parole supervision and (4) vacated the parole warrant lodged against him.

It has long been recognized that actions taken by the Parole Board, whether to grant or revoke parole, 'shall be deemed a judicial function and shall not be reviewable if done in accordance with law' (Correction Law, § 212, subd. 10; People ex rel. Menechino v. Warden, 27 N.Y.2d 376, 380, 318 N.Y.S.2d 449, 451, 267 N.E.2d 238, 240; Matter of Hines v. State Bd. of Parole, 293 N.Y. 254, 56 N.E.2d 572; People ex rel. Smith v. Deegan, 32 A.D.2d 940, 941, 303 N.Y.S.2d 789, 790; People ex rel. Di Lorenzo v. Fay, 13 A.D.2d 1034, 217 N.Y.S.2d 347 mot. for lv. to app. den. 10 N.Y.2d 707, 221 N.Y.S.2d 1026, 178 N.E.2d 190; Matter of Mummiami v. New York State Bd. of Parole, 5 A.D.2d 923, 924, 171 N.Y.S.2d 1018, 1019, mot. for lv. to app. den. 5 N.Y.2d 709, 182 N.Y.S.2d 1025, 156 N.E.2d 463, rearg. den. 7 N.Y.2d 756, 193 N.Y.S.2d 1030, 162 N.E.2d 757, cert. den. 362 U.S. 953, 80 S.Ct. 865, 4 L.Ed.2d 870; cf....