People ex rel. Ayers v. Lombard

• Decision Date: 17 June 1976
• Citation: 87 Misc.2d 355,385 N.Y.S.2d 242
• Parties: The PEOPLE of the State of New York ex rel. Dewey Joseph AYERS, Relator, v. William M. LOMBARD, Sheriff of Monroe County, Respondent.
• Court: New York County Court

Page 242

385 N.Y.S.2d 242

87 Misc.2d 355

The PEOPLE of the State of New York ex rel. Dewey Joseph

AYERS, Relator, v. William M. LOMBARD, Sheriff of Monroe County, Respondent.

Monroe County Court.

June 17, 1976.

Dewey Joseph Ayers, pro se.

HYMAN T. MAAS, Judge.

By his pro se petition sworn to May 17, 1976, relator states that (1) in connection with first-degree robbery and other felony charges, he was arrested (4--20--76), arraigned (4--21--76) and bound over for grand jury action (4--27--76) by a Rochester City Court Judge, and held in lieu of $5,000.00 bail; (2) in connection with the same acts underlying the aforesaid charges, a parole detainer warrant was executed against him on 4--21--76; and (3) a preliminary parole violation hearing was conducted at the Monroe County Jail on 5--6--76, at which time the hearing officer found probable cause to believe that relator had violated conditions of his parole.

Relator further alleges that (4) the hearing officer arbitrarily refused his requests for representation by counsel at the preliminary hearing; (5) the hearing officer made an arbitrary finding of probable cause in the face of conflicting identification evidence by two witnesses; and (6) probable cause could not properly be found by the hearing officer unless and until there was an adjudication of relator's guilt of the criminal charges in a court of law.

He asks the court to prohibit the parole authorities from returning him to prison 'and/or' to admit him to bail. As the court informed relator in denying his previous habeas corpus application (of 5--5--76), there is no authority for bail for parolees who are arrested and incarcerated pending parole violation hearings (People ex rel. Calloway v. Skinner, 33 N.Y.2d 23, 33, 347 N.Y.S.2d 178, 183, 300 N.E.2d 716, 719).

The mere fact of an arrest, without more, will support the issuance of a parole violation warrant, and the warrant will not be rendered invalid by a subsequent 'no bill' of the underlying charges, since the standard by which the grand jury operates is not the same as that governing the parole authorities. People ex rel. West v Vincent, 46 A.D.2d 782, 360 N.Y.S.2d 696. The continued effect of the violation warrant depends upon (a) the parole board's granting the parolee a prompt preliminary violation hearing, and (b) the hearing officer's finding of 'probable cause or reasonable ground' to believe that the detainee has committed an act in violation of his parole, and thus to hold him for the final violation (revocation) hearing before the parole board. Morrissey v. Brewer, 408 U.S. 471, 485--487, 92 S.Ct. 2593, 33 L.Ed.2d 484; People ex rel. Puma v. Warden, 76 Misc.2d 336, 351 N.Y.S.2d 70.

Notwithstanding the pendency of concurrent criminal charges, the parolee is entitled to prompt violation hearings, since the presence of a detainer warrant may prejudice his ability to obtain a bail he can afford on those charges. People ex rel. Allah v. Warden, 47 A.D.2d 485, 367 N.Y.S.2d 486; Wright v. Regan, 46 A.D.2d 163, 361 N.Y.S.2d 437. The rules of the parole board permit the parolee to waive the preliminary hearing but not the final hearing (7 NYCRR 1925.15(c)).

Parole violation hearings are essentially administrative proceedings, not to be conducted like criminal trials. People ex rel. Maggio v. Casscles, 28 N.Y.2d 415, 418, 322 N.Y.S.2d 668, 671, 271 N.E.2d 517, 519; Williams v. Field (D.C., Cal.), 301 F.Supp. 902. They are not adversary proceedings. People ex rel. Warren v. Mancusi, 40 A.D.2d 279, 282, 339 N.Y.S.2d 882, 886; People ex rel. Smith v. Deegan, 32 A.D.2d 940, 303 N.Y.S.2d 789. The parolee is not entitled to the presumption of innocence. People ex rel. McNair v. West, 77 Misc.2d 150, 153, 352 N.Y.S.2d 128, 133; Argro v. United States (CA 2), 505 F.2d 1374, 1378. Common-law standards of proof do not apply. White v. Board of Parole, 49 A.D.2d 908, 373 N.Y.S.2d 397. The standard of proof is whether the evidence is 'satisfactory' to the preliminary hearing officer (People ex rel. Calloway v. Skinner, 33 N.Y.2d 23, 31, 347 N.Y.S.2d 178, 181, 300 N.E.2d 716, 718) or to the parole board on revocation (People ex rel. Marino v. Casscles, 42 A.D.2d 304, 306, 346 N.Y.S.2d 634, 636). It is the parole board alone which is to ascertain the facts and decide their ultimate importance. People ex rel. Menechino v. Warden, 27 N.Y.2d 376, 384, 318 N.Y.S.2d 449, 455, 267 N.E.2d 238, 242. Hearsay evidence is admissible, including letters, affidavits and other material which would not be admissible at a criminal trial. Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 33 L.Ed.2d 484. 'Satisfactory' evidence must consist of something more than an unverified parole officer's violation report (Tinsley v. Board of Parole, 73 Misc.2d 289, 295, 372 N.Y.S.2d 259, 266), an equivocal admission by an uncounseled parolee (People ex rel. Tune v. Rubin, 81 Misc.2d 254, 364 N.Y.S.2d 86) or a mere technical violation not going to the substance of a condition of parole (Arciniega v. Freeman, 404 U.S. 4, 92 S.Ct. 22, 30 L.Ed.2d 126; People ex rel. Maggio v. Casscles, 28 N.Y.2d 415, 418, 322 N.Y.S.2d 668, 671, 271 N.E.2d 517, 519). Of course, consent or non-consent to parole conditions does not relieve a parolee of the duty to abide by them. Tinsley v. Board of Parole, 73 Misc.2d 289, 299, 342 N.Y.S.2d 259, 270.

In contrast to the final (revocation) hearing, the preliminary hearing is intended to be informal and summary in nature, with only a 'minimal inquiry' necessary to determine whether there is probable cause to hold the parolee for a final hearing before the parole board. The parolee (or probationer) is entitled to notice of the alleged violations and of the hearing, an opportunity to appear and to testify and present his own relevant evidence, a conditional right to confront adverse witnesses, an independent decision maker, and a written report of the hearing determination. Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct. 1756, 36 L.Ed.2d 656; Morrissey v. Brewer, 408 U.S. 471, 485--487, 92 S.Ct. 2593, 33 L.Ed.2d 484; People ex rel. Calloway v. Skinner, 33 N.Y.2d 23, 31, 347 N.Y.S.2d 178, 181, 300 N.E.2d 716, 718. At a final hearing, our State Constitution mandates the parolee's right to assistance of counsel (Calloway, supra, p. 31, 347 N.Y.S.2d p. 181, 300 N.E.2d p. 718). The right may be waived (People ex rel. Lawrence v Smith, 50 A.D.2d 1073, 376 N.Y.S.2d 61) but a waiver will not be presumed where the parolee does not request counsel because he is unaware he can do so. People ex rel. Menechino v. Warden, 27 N.Y.2d 376, 318 N.Y.S.2d 449, 267 N.E.2d 238. At a preliminary hearing, however, the Court of Appeals says it is doubtful, in the vast majority of cases, that the presence of counsel would be of any constructive assistance to the parolee, and that the decision as to the need for counsel there should be made on a case-by-case basis in the exercise of a sound discretion by the parole board in accordance with the guidelines set forth in Morrissey v. Brewer. (Calloway 33 N.Y.2d 31--32, 347 N.Y.S.2d 181--182, 300 N.E.2d 718--719; 7 NYCRR 1925.25(a)). It has been held, however, that the parolee has a constitutional right to be informed that he may Request counsel at the preliminary hearing. People ex rel. Puma v. Warden, 76 Misc.2d 336, 338, 351 N.Y.S.2d 70, 72. In every case where a request for preliminary hearing counsel is refused, the grounds for refusal shall be...