Beattie v. New York State Bd. of Parole

• Decision Date: 27 April 1976
• Citation: 39 N.Y.2d 445,348 N.E.2d 873,384 N.Y.S.2d 397
• Parties: , 348 N.E.2d 873 In the Matter of Gregory BEATTIE, Respondent, v. NEW YORK STATE BOARD OF PAROLE, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 397

384 N.Y.S.2d 397

39 N.Y.2d 445, 348 N.E.2d 873

In the Matter of Gregory BEATTIE, Respondent, v. NEW YORK STATE BOARD OF PAROLE, Appellant.

Court of Appeals of New York.

April 27, 1976.

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

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

PER CURIAM.

The issue is whether a parolee held on an unrelated criminal charge is entitled to a prompt final revocation hearing. The answer is that he is.

Preliminarily, the appeal, as has been suggested, should not be dismissed for mootness in view of relator's subsequent conviction of the crime for which he had been charged. Even if the issue be mooted, the appeal should not be dismissed as moot if a question of general interest and substantial public importance is likely to recur (People ex rel. Guggenheim v. Mucci, 32 N.Y.2d 307, 310, 344 N.Y.S.2d 944, 945, 298 N.E.2d 109, 110; accord, e.g., Matter of Jones v. Berman, 37 N.Y.2d 42, 57, 371 N.Y.S.2d 422, 432, 332 N.E.2d 303, 311; East Meadow Community Concerts Assn. v. Board of Educ. of Union Free School Dist. No. 3, 18 N.Y.2d 129, 135, 272 N.Y.S.2d 341 346, 219 N.E.2d 172, 175). Such a recurring question in involved.

Although there is no fixed time within which a final parole hearing is required, the Parole Board is nevertheless required to hold such hearing within a reasonable time (Correction Law, § 212, subd. 7; see, e.g., Morrissey v. Brewer, 408 U.S. 471, 488, 92 S.Ct. 2593, 33 L.Ed.2d 484; People ex rel. Allah v. Warden, 47 A.D.2d 485, 487, 367 N.Y.S.2d 486, 488; Matter of McLucas v. Oswald, 40 A.D.2d 311, 315, 339 N.Y.S.2d 760, 764). Despite conclusive cause to believe a condition of parole has been breached, the parolee is entitled to a final revocation hearing, with the right to counsel, because of the divers factors which may influence the parole decision in fixing the period, if any, to be served under the prior unexpired sentence (see People ex rel. Donohoe v. Montanye, 35 N.Y.2d 221, 226, 360 N.Y.S.2d 619, 622, 318 N.E.2d 781, 783).

Of course, the parolee, in order to receive a hearing, must be in the custody of a correction facility as an inmate in connection with which the Parole Board has parole jurisdiction (cf. People ex rel. Petite v. Follette, 24 N.Y.2d 60, 64, 298 N.Y.S.2d 950, 953, 246 N.E.2d 722, 724). In this case, there was such custody and it is immaterial that the technical form of the custody was by virtue of temporary detention due to inadequate detention facilities in the City of New York (People ex rel. Allah v. Warden, 47 A.D.2d 485, 487--488, 367 N.Y.S.2d 486, 488--89, Supra). The fact is that the parolee was in a place subject to the convenience and practical control of the Parole Board.

The view urged and taken in some Federal cases that a parolee, still under unrelated charges, should not be compelled to consider waiving his privilege against self incrimination in the parole hearing is insubstantial (see, e.g., Burdette v. Nock, 6 Cir., 480 F.2d 1010, 1012; Avellino v. United States, 2 Cir., 330 F.2d 490, 491, cert. den. 379 U.S. 922, 85 S.Ct. 280, 13 L.Ed.2d 336). That is the parolee's choice with the advice of counsel. If he wishes he may...