Garland v. New York State Division of Parole

• Decision Date: 25 February 1982
• Parties: In re Application of Benjamin GARLAND, Petitioner-Appellant, For a Judgment, etc., v. NEW YORK STATE DIVISION OF PAROLE, Respondent-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 446

447 N.Y.S.2d 446

86 A.D.2d 848

In re Application of Benjamin GARLAND, Petitioner-Appellant,

For a Judgment, etc., v. NEW YORK STATE DIVISION OF PAROLE, Respondent-Respondent.

Supreme Court, Appellate Division,

First Department.

Feb. 25, 1982.

Richard Greenberg, Legal Aid Society, New York City, for petitioner-appellant.

E. J. Perry, New York City, for respondent-respondent.

Before CARRO, J. P., and SILVERMAN, BLOOM, FEIN and MILONAS, JJ.

MEMORANDUM DECISION.

Two Orders, Supreme Court, New York County, entered March 2, 1981 and October 30, 1981, directing the Division of Parole to hold a final parole revocation hearing within 90 days and 30 days of entry of the first and second orders respectively, unanimously reversed, on the law, without costs, and parole revocation warrant vacated.

On December 10, 1979 a New York State parole violation warrant was lodged against petitioner-appellant, who was in federal custody at the Metropolitan Correctional Center (MCC). On that same date he waived a preliminary revocation hearing. He did not receive a final parole revocation hearing until November 5, 1981, almost two years later.

Executive Law § 259-i subd. 3(f)(i) provides that revocation hearings shall be scheduled to be held within ninety days of probable cause determination (in this instance, the waiver of the preliminary hearing on December 10, 1979). The language is mandatory, and a delay beyond the ninety day limitation (unless the statutory exceptions, relating to petitioner's actions or his request or consent to a postponement, are applicable) is unreasonable per se (Peo. ex rel Levy v. Dalsheim, 66 A.D.2d 827, 411 N.Y.S.2d 343, aff'd 48 N.Y.2d 1019, 425 N.Y.S.2d 802, 402 N.E.2d 141).

Two adjournments were requested by petitioner, the first because he had not received the statutory 14 day notice of revocation hearing and the second in order to secure counsel. Thereafter petitioner was transferred to Lewisburg Federal Penitentiary. He wrote to the Division of Parole on May 16, 1980 requesting disposition of the warrant. He was returned to MCC on June 13, 1980. However, the Division of Parole was apparently unaware of the transfer and no revocation hearing was held. He was again transferred to Lewisburg on July 21, 1980 and then again returned to MCC on February 12, 1981. On March 2, 1981, the first order was entered directing the Division of Parole to conduct a hearing within 90 days, Special Term having held that petitioner was responsible for the delay, "whatever the occasion". The Division, again unaware of Petitioner's presence at MCC, requested that he be returned from Lewisburg. The Federal authorities answered on April 3, 1981, in what appears to be a form letter, denying the request and stating that no prisoners were being returned for state parole hearings "since the inmate count is very high at that facility". On October 30, 1981, the second order directed the Division to conduct the hearing within 30 days. It was held on November 5, 1981.

Respondent contends that the requests for adjournment should be...