Lott v. Smith
| Decision Date | 13 November 1981 |
| Citation | 446 N.Y.S.2d 665,84 A.D.2d 909 |
| Parties | In the Matter of the Application of Willie James LOTT, Appellant, v. Harold J. SMITH, Superintendent, Attica Correctional Facility, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Rose H. Sconiers by Charles D. Halvorsen, Buffalo, for appellant.
Robert Abrams, Atty. Gen., Albany by Peter Sullivan, Buffalo, for respondent.
Before CARDAMONE, J. P., and CALLAHAN, DOERR, DENMAN and SCHNEPP, JJ.
Petitioner appeals from a judgment of the Supreme Court, Wyoming County, which dismissed his application for a writ of habeas corpus contesting the timeliness of his final parole revocation hearing. Petitioner's writ, which we now convert to an article 78 proceeding, was denied on the grounds that his request for counsel within the 90-day statutory period (Executive Law, § 259-i, subd. 3, par. cl. ) constituted a request for an adjournment which allocated any subsequent hearing delay to petitioner. On November 15, 1979, petitioner's parole was violated based on his arrest on another charge. Probable cause to revoke parole was found in a preliminary hearing held December 18, 1979. On March 7, 1980 (10 days prior to the expiration of the mandatory 90-day period for conducting final parole revocation hearing pursuant to Executive Law, § 259-i, subd. 3, par. cl. ), petitioner met with an institutional parole officer to schedule his final revocation hearing. At that time he executed a form indicating his desire for representation by an attorney at the final revocation hearing and requested that "this hearing be put off until such time that I can arrange for an attorney." The hearing was then scheduled for the week beginning April 1, 1980. At the final hearing held on April 2, 1980, petitioner's parole was revoked as a result of his conviction on the other charge.
Executive Law § 259-i (subd. 3, par. cl. ), explicitly provides that: "Revocation hearings shall be scheduled to be held within ninety days of the probable cause determination". It further directs that the alleged violator "shall be given written notice of the date, place and time of the hearing as soon as possible but at least fourteen days prior to the scheduled date" (Executive Law § 259-i, subd. 3, par. cl. ). The mandates of the Executive Law are to be strictly construed (People ex rel. Levy v. Dalsheim, 66 A.D.2d 827, 411 N.Y.S.2d 343, affd. 48 N.Y.2d 1019, 425 N.Y.S.2d 802, 402 N.E.2d 141). Failure to give an...
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...not been given (People ex rel. Andersen v. New York State Bd. of Parole, 94 A.D.2d 807, 808, 463 N.Y.S.2d 237; Matter of Lott v. Smith, 84 A.D.2d 909, 910, 446 N.Y.S.2d 665; cf. Matter of Jackson v. Hammock, 82 A.D.2d 888, 440 N.Y.S.2d A process server's affidavit of service has been held t......
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People ex rel. Anderson v. New York State Bd. of Parole
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