People ex rel. Brown v. New York State Div. of Parole

• Decision Date: 17 November 1987
• Citation: 516 N.E.2d 194,521 N.Y.S.2d 657,70 N.Y.2d 391
• Parties: , 516 N.E.2d 194 The PEOPLE of the State of New York ex rel. Robert BROWN, Also Known as George Ballard, Appellant, v. NEW YORK STATE DIVISION OF PAROLE et al., Respondents. The PEOPLE of the State of New York ex rel. Albert CITRO, Respondent, v. James SULLIVAN, as Superintendent of Sing Sing Correctional Facility, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 657

521 N.Y.S.2d 657

70 N.Y.2d 391, 516 N.E.2d 194

The PEOPLE of the State of New York ex rel. Robert BROWN, Also Known as George Ballard, Appellant, v. NEW YORK STATE DIVISION OF PAROLE et al., Respondents.

The PEOPLE of the State of New York ex rel. Albert CITRO, Respondent, v. James SULLIVAN, as Superintendent of Sing Sing Correctional

Facility, Appellant.

Court of Appeals of New York.

Nov. 17, 1987.

Mary Carroll Rothwell, Philip L. Weinstein and Roger Brazill, New York City, for appellant in the first above-entitled proceeding.

Robert Abrams, Atty. Gen. (Burton Herman, O. Peter Sherwood and Gerald J. Ryan, New York City, of counsel), for respondents in the first and appellant in the second above-entitled proceeding.

Carol Kahn, for respondent in the second above-entitled proceeding.

OPINION OF THE COURT

SIMONS, Judge.

Pursuant to statutory mandate, a parolee is entitled to a final parole revocation hearing within 90 days of the determination finding that probable cause exists for the revocation of parole (Executive Law § 259-i[3][f][i] ). The statute provides three exceptions to the 90-day rule. If an alleged violator requests and receives a postponement of the hearing, consents to a postponement initiated by the Parole Board, or "by his actions otherwise precludes the prompt conduct of such proceedings," failure to hold the hearing within the 90-day period will be excused. These two habeas corpus proceedings present situations in which the relator or his counsel was unavailable and the issue is whether the failure of the Division of Parole to hold relators' final revocation hearings within the 90-day period can be excused because they were.

I

A

In the first case relator was unavailable because he had a conflicting court appearance.

In April 1985, relator Robert Brown was released from prison on parole. On November 19, 1985 he was returned to jail after being arrested for additional crimes committed while on parole. A parole violation warrant was lodged against him on the same day charging that he had failed to make a scheduled office report as required by his parole officer. A preliminary parole revocation hearing was held, probable cause found and a final hearing was scheduled for February 4, 1986. At the request of the Division of Parole, however, the final hearing was rescheduled to February 13, 1986. Relator's parole officer did not appear on that date causing a further adjournment. During the course of the discussions concerning an acceptable adjourned date, relator informed the Administrative Law Judge that he was scheduled for a court appearance on February 25, 1986. The final parole hearing was originally rescheduled for March 6, 1986, but after realizing that the 90-day period would expire on February 26, 1986, the Division of Parole rescheduled the hearing for February 24, the 88th day after the date on which the probable cause finding was made. Relator did not appear for the hearing on February 24, 1986, however, and the hearing was adjourned until March 17, 1986.

Relator failed to appear on the 24th because he was taken by New York City correction officials to a court appearance for arraignment on the new charges. It is undisputed that neither relator nor his attorney had advance notice of the arraignment and relator's allegation that he asked the correction officers, both before and after the court appearance, to take him to his parole revocation hearing was not rebutted by respondents.

Relator's final revocation hearing was held on March 17, 1986, 108 days after the determination of probable cause. At that time he moved to dismiss the charge on the ground that the hearing was untimely. The Hearing Officer eventually denied his motion to dismiss, finding that relator's appearance on February 24, 1986 in New York Supreme Court, instead of attending the final revocation hearing, "must be seen as a choice" for which the Division of Parole should not be penalized. Relator instituted this habeas corpus proceeding, seeking vacatur of the parole warrant on the ground that the final revocation hearing was untimely. Supreme Court dismissed the petition and the Appellate Division affirmed, 124 A.D.2d 1078, 508 N.Y.S.2d 131. We granted leave to appeal.

B

In the Citro case, relator's hearing was adjourned because his attorney failed to appear.

On May 31, 1983 relator Albert Citro was released from prison on parole. He was subsequently charged with a violati of parole and returned to prison. A preliminary hearing was held on July 1, 1985, probable cause found and a final revocation hearing scheduled for August 13, 1985. Sometime prior to this date, however, Citro was transferred from Queensboro Correctional Facility to Sing Sing Correctional Facility. Accordingly, the final hearing was rescheduled to be held at Sing Sing at 9:30 A.M. on September 25, 1985--86 days after the determination finding probable cause.

Relator's counsel did not appear at Sing Sing on the morning of September 25, 1985 and the hearing was adjourned until October 9, 1985. October 2 was an available, regularly scheduled date for parole revocation hearings but relator's counsel was not informed, prior to October 2, that the hearing had been rescheduled for October 9. At the October 9 hearing, relator argued that parole must be restored because the Division had not held a timely revocation hearing. Counsel excused her absence at the September hearing claiming that she had called Sing Sing on the morning of the 25th and informed relator's parole officer of the conflict. She made no written or oral application to the hearing coordinator in the local area office to move the hearing to the afternoon. The motion to dismiss the charge was denied, relator was found to have violated the conditions of his parole and parole was revoked.

Relator instituted this habeas corpus proceeding, contending that the adjournment of the revocation hearing from September 25, 1985 to October 9, 1985 should be chargeable to the Division of Parole and, therefore, the October 9, 1985 hearing was untimely. Special Term granted the writ and restored relator to parole, reasoning that all 14 days of adjournment between September 25 and October 9 were chargeable to the Division of Parole because the Division failed to comply with its "responsibility to schedule revocation hearings in such a way to give a reasonable expectation that they will be held within the prescribed ninety (90) days." The Appellate Division affirmed, but on different grounds. It concluded the period between September 25, 1985 and October 2, 1985 should be chargeable to the parolee because his lawyer failed to comply with the regulations requiring a written request for an adjournment (9 NYCRR 8005.17[c][1], [2] ). The court held, however, that the seven days between October 3 and October 9 should be chargeable to the Division, because the Division failed to demonstrate that it acted " 'energetically and scrupulously' " to ensure that a hearing is not delayed for a period longer than necessary to assure an alleged parole violator his statutorily entitled right to counsel (124 A.D.2d 765, 766, 508 N.Y.S.2d 483, quoting People ex rel. Burley v. Warden, 70 A.D.2d 518, 518-519, 415 N.Y.S.2d 871, lv. denied 48 N.Y.2d 602, 421 N.Y.S.2d 1026, 396 N.E.2d 205). We granted respondent leave to appeal.

II

Preliminarily, we note that in People ex rel. Brown v. New York State Div. of Parole relator, in addition to being held on the parole violation, is being held on unrelated pending criminal charges. Because success on the merits in this proceeding would not entitle him to immediate release from custody, the remedy of habeas corpus is unavailable (People ex rel. Maiello v. New York State Bd. of Parole, 101 A.D.2d 569, 573, 475 N.Y.S.2d 851, affd. 65 N.Y.2d 145, 490 N.Y.S.2d 742, 480 N.E.2d 356). However, appellate courts are empowered to convert a civil proceeding into one which is proper in form under CPLR 103(c), making whatever order is necessary for its proper prosecution (Matter of Fritz v. Huntington Hosp., 39 N.Y.2d 339, 347, 384 N.Y.S.2d 92, 348 N.E.2d 547). Thus, we convert this proceeding to one brought pursuant to CPLR article 78, observing that the proceeding was brought well within the four-month Statute of Limitations of CPLR 217 (compare, Matter of Soto v. New York State Bd. of Parole, 107 A.D.2d 693, 484 N.Y.S.2d 49, affd. for reasons stated in App.Div mem. 66 N.Y.2d 817, 498 N.Y.S.2d 363, 489 N.E.2d 250 [habeas corpus petition brought after four-month period requires dismissal of petition], with Matter of Piersma v. Henderson, 60 A.D.2d 1001, 401 N.Y.S.2d 666, affd. 44 N.Y.2d 982, 408 N.Y.S.2d 332, 380 N.E.2d 164 [habeas corpus brought within four-month period; proceeding is converted to an article 78 proceeding and court reaches the merits] ).

Turning to the merits, there is no dispute that relator was not afforded a final revocation hearing within 90 days of the probable cause determination. Moreover, respondents concede that the delay between February 24 and March 17 cannot be chargeable to him pursuant to any of the statutory exceptions. Respondents contend, however, that the Division should be excused for failing to afford relator a revocation hearing within the 90-day period because he was not subject to its "convenience and practical control" (see, People ex rel. Gonzales v. Dalsheim, 52 N.Y.2d 9, 12, 436 N.Y.S.2d 199, 417 N.E.2d 493). The burden of proving that the parolee is not subject to the practical control of the Division rests with the Division (id., at 14, n. 1, 436 N.Y.S.2d 199, 417 N.E.2d 493) and respondents have failed to satisfy that burden in the present case.

A parolee is in a place "subject to the convenience and practical control" of the Division of Parole when he is in the custody of a correctional facility as an inmate with which the Parole Board has parole jurisdiction (Matter of Beattie v. New York State Bd. of Parole, 39 N.Y.2d 445,...