McLucas v. Oswald

• Decision Date: 17 January 1973
• Citation: 339 N.Y.S.2d 760,40 A.D.2d 311
• Parties: In the Matter of Lonnie McLUCAS, Appellant, v. Russell G. OSWALD et al., Constituting the New York State Division of Parole, Respondents.
• Court: New York Supreme Court — Appellate Division

Page 760

339 N.Y.S.2d 760

40 A.D.2d 311

In the Matter of Lonnie McLUCAS, Appellant, v. Russell G. OSWALD et al., Constituting the New York State Division of Parole, Respondents.

Supreme Court, Appellate Division, Third Department.

Jan. 17, 1973.

Pollack & Singer, New York City (Richard M. Asche, New York City, of counsel), for appellant.

Louis J. Lefkowitz, Atty. Gen. (Frederick R. Walsh, Ruth Kessler Toch and Jean M. Coon, Albany, of counsel), for respondents.

Before STALEY, J.P., and GREENBLOTT, COOKE, SWEENEY and REYNOLDS, JJ.

PER CURIAM.

This is an appeal from a judgment of the Supreme Court at Special Term, entered September 2, 1971 in Albany County, which denied appellant's application pursuant to CPLR article 78, seeking a judgment mandating the withdrawal of a warrant for his arrest and enjoining respondents from attempting to have executed any warrant arising out of any alleged parole violation by appellant.

On December 10, 1963, appellant was sentenced in New York to a term of 3 1/2 to 7 years. He was paroled to North Carolina by the New York State Parole Board on July 13, 1967. Appellant was declared delinquent by the board on February 28, 1969, and a warrant for his detainer and retaking was forwarded to North Carolina authorities on March 12, 1969. Appellant was not taken into custody by North Carolina, but on April 25, 1969, he was arrested in Connecticut on unrelated charges.

On May 7, 1969, the New York State Parole Board sent a certified copy of the warrant to the Connecticut Department of Correction and the New Haven police to be lodged as a detainer, with the understanding that the warrant would not interfere in any way with the Connecticut charges. The board further requested the Connecticut Department of Correction to investigate the details surrounding the Connecticut arrest and to secure statements as to appellant's reasons for absconding from North Carolina and as to where he went after absconding.

Subsequently, appellant did not appear on the adjourned date regarding the charges for the April 25th arrest, and on June 5, 1969, Connecticut authorities informed respondents that appellant had absconded. On September 6, 1969, respondents wrote the Connecticut Board of Parole, attaching a copy of a report from North Carolina authorities advising that appellant was in the custody of the United States Marshal in Hartford, Connecticut, and requested that a certified copy of the parole violation warrant be filed with the Marshal's office or with the New Haven police, in the event they took custody, and that the warrant be lodged as a detainer. Respondents were informed by Connecticut authorities in September, 1969, that appellant had been arrested on June 11, 1969 on a Connecticut bench warrant issued May 27, 1969 on other unrelated charges and that the New York parole violation warrant was filed with the New Haven County State's Attorney's Office.

Appellant was convicted in Connecticut of conspiracy to commit murder and was sentenced in September, 1970, to a term of 12--15 years. On October 7, 1970, the Connecticut Probation Department informed respondents that the prison authorities where the warrant was lodged had been contacted and would give respondents 60 days' notice in advance of releasing appellant.

On May 25, 1971, bail was set for appellant pending appeal in Connecticut. Said appeal is still pending and appellant contends that his freedom is prevented because of an illegal detainer filed by respondents upon which a Connecticut warrant was issued.

The question to be determined on this appeal is whether the procedure employed by respondents in the parole revocation proceeding comports with due process requirements. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, decided on June 29, 1972, held that, though parole revocation does not call for the full panoply of rights due a defendant in a criminal proceeding, a parolee's liberty involves significant values within the protection of the due process clause of the Fourteenth Amendment, and termination of that liberty requires an informal hearing to give assurances that the finding of a parole violation is based on verified facts to support the revocation.

In the opinion, Mr. Chief Justice Burger stated at page 485, 92 S.Ct. at page 2602:

There is typically a substantial time lag between the arrest and the eventual determination by the parole board whether parole should be revoked. Additionally, it may be that the parolee is arrested at a place distant from the state institution, to which he may be returned before the final decision is made concerning revocation. Given these factors, due process would seem to require that some minimal inquiry be conducted at or reasonably near the place of the alleged parole violation or arrest and as promptly as convenient after arrest while information is fresh and sources are available. * * * Such an inquiry should be seen as in the nature of a 'preliminary hearing' to determine whether there is probable cause or reasonable grounds to believe that the arrested parolee has committed acts which would constitute a violation of parole conditions.

Morrissey went on to hold that the parolee should receive prior notice of the inquiry, which is to be conducted by an impartial hearing officer, its purpose, and the alleged violations. The parolee may present relevant information and, absent security considerations, question adverse informants. The hearing officer shall digest the evidence on probable cause and state the reasons...