Jackson v. Hammock
| Decision Date | 22 June 1981 |
| Parties | In the Matter of James JACKSON, Appellant, v. Edward R. HAMMOCK, Chairman of the New York State Board of Parole, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Matthew Muraskin, Mineola (Robert J. Raubach and Michael J. Obus, Mineola, of counsel), for appellant.
Robert Abrams, Atty. Gen., New York City , for respondent.
Before TITONE, J. P., and LAZER, WEINSTEIN and THOMPSON, JJ.
MEMORANDUM BY THE COURT.
Appeal by petitioner from a judgment of the Supreme Court, Nassau County, entered October 17, 1980, which dismissed his petition seeking, inter alia, to cancel the declaration of delinquency against him.
Judgment reversed, on the law, without costs or disbursements, petition granted, with prejudice, to the extent that the declaration of delinquency is canceled and the warrant is vacated.
On June 23, 1978 petitioner was sentenced to concurrent terms of imprisonment of two to four years upon his convictions of robbery in the third degree and attempted robbery in the third degree, and of one year upon his conviction of grand larceny in the third degree. He was "conditionally released" on September 19, 1979. On December 6, 1979 he was arrested for larceny, and on December 17, 1979 a warrant for his detention as an alleged parole violator was served upon him. At the end of the preliminary hearing, held on its rescheduled date of January 10, 1980, the hearing officer found probable cause to believe that petitioner had violated the conditions of his parole. On February 22, 1980 the State Division of Parole sent petitioner's counsel (Legal Aid Society) notice that a final revocation hearing was scheduled for 10:30 A.M. on March 11, 1980 at the Nassau County Jail. However, when a Legal Aid attorney appeared that day to represent petitioner, he was informed by corrections officers that petitioner had been transferred to the Ossining Correctional Facility.
On March 11 and again on March 18, the Legal Aid attorney sent a letter to petitioner addressed to the facility at Ossining. The first one was returned with a notation that he was no longer there. A letter was then sent by the attorney to the Department of Correctional Services, which responded that petitioner had been released on September 19, 1979 (the date on which he had been "conditionally released"). Finally, on April 23, 1980, in response to a second letter from the attorney as to petitioner's whereabouts, the former was advised that petitioner was located at the Clinton Correctional Reception Center in Dannemora, New York.
The attorney then sent a letter, dated May 2, 1980, to petitioner at the Clinton facility. In a letter dated May 16, petitioner advised the attorney that he had written him twice while he was in the facility at Clinton and not having received an answer, he proceeded to a final revocation hearing on April 14, without counsel, on the advice of a parole officer. The final revocation hearing date of April 14 was 95 days after petitioner had received his preliminary revocation hearing.
The record also reveals that on April 3, 1980, petitioner executed a printed document in which it was recited that he waived his right to an attorney, that he was ready to proceed to his final revocation hearing, and that he understood he would be advised of the time, date and place of the "Final Violation Hearing" at least seven days before such hearing. On April 15, 1980, a day after the final revocation hearing was held at the Clinton facility, the respondent Parole Board issued a decision notice which contained no findings of fact, but simply sustained the parole violations, revoked petitioner's parole, and directed that the time assessed be governed by petitioner's "new sentence."
In denying petitioner's application, inter...
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