People ex rel. Calloway v. Skinner

• Decision Date: 28 February 1973
• Citation: 41 A.D.2d 106,341 N.Y.S.2d 775
• Parties: PEOPLE of the State of New York ex rel Leticia M. CALLOWAY, Appellant, v. Albert SKINNER, Monroe County Sheriff, Respondent. PEOPLE of the State of New York ex rel. Janet ROBINSON, Appellant, v. Albert SKINNER, Monroe County Sheriff, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 775

341 N.Y.S.2d 775

41 A.D.2d 106

PEOPLE of the State of New York ex rel Leticia M. CALLOWAY, Appellant, v. Albert SKINNER, Monroe County Sheriff, Respondent.

PEOPLE of the State of New York ex rel. Janet ROBINSON, Appellant, v. Albert SKINNER, Monroe County Sheriff, Respondent.

Supreme Court, Appellate Division, Fourth Department.

Argued Jan. 15, 1973.

Decided Feb. 28, 1973.

Nicholas P. Varlan, Rochester, for appellants (Leslie Bradshaw, Rochester, of counsel).

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

Before MARSH, J.P., and MOULE, CARDAMONE, SIMONS, and HENRY, JJ.

HENRY, Justice:

In this joint appeal by alleged parole violators, they claim that denial of their right to counsel at a preliminary hearing to determine whether there was probable cause to hold them for a parole revocation hearing violated due process.

In the month of June 1972, warrants were issued by the Board of Parole pursuant to sections 216--218 of the Correction Law. The warrants recited that there was reasonable cause to believe that the appellants had violated their parole and directed that they be retaken and placed in detention to await action of the Board of Parole.

There is no provision in the Correction Law for the holding of a preliminary hearing to determine whether probable cause or reasonable grounds exist to believe that a parolee has violated his parole conditions.

On June 29, 1972 after the warrants had been executed the United States Supreme Court decided in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, that after arrest of an alleged parole violator a preliminary hearing should be held, before someone other than the parole officer who reports the violations, 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. At such hearings the parolee may appear and speak in his own behalf. The court in its opinion does not provide that the parolee shall have assistance of counsel but says (p. 489, 92 S.Ct. p. 2604) '(w)e do not reach or decide the question of whether the parolee is entitled to the assistance of retained counsel or to appointed counsel if he is indigent.'

Relators petitioned for habeas corpus relief alleging that Morrissey requires that they be given an immediate hearing. The matter was heard at Special Term on July 27, 1972 and an order entered thereon required that the parole violation warrants be vacated and petitioners be released from custody unless prior to August 8, 1972 the Parole Board conduct a preliminary hearing to determine whether there is probable cause to believe that petitioners had violated the conditions of their parole. The order required compliance with all of the Morrissey provisions at the preliminary hearings. It required that petitioners' attorney be given advance written notice of time, place and purpose of the preliminary hearing and a statement of the violations but denied petitioners' requests for counsel at the hearings. The hearings were held on August 4 and the hearing officer by written decision in each case found that there was probable cause to hold petitioners. Special Term, 71 Misc.2d 810, 337 N.Y.S.2d 37, thereafter denied the relief sought and dismissed the petitions. In a single notice of appeal both petitioners appealed from the order. They claim that denial of the right to counsel at the preliminary hearing violated due process.

There is no constitutional or statutory provision entitling an alleged parole violator to assistance of counsel at a preliminary hearing. Morrissey does not require it and the holding in People ex rel. Menechino v. Warden, 27 N.Y.2d 376, 318 N.Y.S.2d 449, 267 N.E.2d 238, should not be extended to entitle an alleged parole violator to the assistance of counsel at such a hearing.

In Menechino, the court in holding that a parolee is entitled to be represented by a lawyer at a parole revocation hearing before the Board of Parole said: '* * * participation by counsel need be no greater than is required to assure * * * that the board is accurately informed of the facts before it acts * * *' (supra, at p. 383, 318 N.Y.S.2d at p. 455, 267 N.E.2d at p. 242). Participation of counsel in a preliminary hearing would serve no such purpose. Menechino is, therefore, not authority for participation of parolees' attorney at the preliminary hearings in the case at bar.

People ex rel. Combs v. LaVallee, 29 A.D.2d 128, 286 N.Y.S.2d 600, is not authority for giving an alleged parole violator assistance of counsel at such a hearing. Our holding in that case, allowing the relator to have assistance of counsel in his hearing before the Board of Parole, was based on the provision of Article I, section 6 of the New York Constitution which guarantees the right to counsel 'in any trial in any court' and the then provision of section 218 of the Correction Law, which mandated the Board of Parole to 'hold a parole court'. In the case at bar there was no proceeding before a parole court or any court but the hearing was before a designated parole officer to determine the limited issue of whether reasonable cause existed to require a hearing before the Board of Parole.

A parole revocation hearing is in the nature of an administrative proceeding (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). It is not to be equated to a criminal prosecution in any sense. It is a narrow inquiry (Morrissey v. Brewer, Supra, 408 U.S. 471, 489, 92 S.Ct. 2593, 33 L.Ed.2d 484). A person who has been denied assistance of counsel at the preliminary stages of an administrative proceeding is not denied due process of law if he has assistance of counsel in subsequent proceedings resulting in the final administrative order. (Low-Wah Suey v. Backus, 225 U.S. 460, 470, 32 S.Ct. 734, 56 L.Ed. 1165; OppCotton Mills v. Wage and Hour Div., 312 U.S. 126, 152--153, 61 S.Ct. 524, 85 L.Ed. 624; Chin Shee v. White, 273 F. 801; Sire v. Berkshire, 185 F. 967; Annotation, Administrative Hearings-Aid of Counsel, 33 A.L.R.3d 229, 244.)

We conclude that denial of the assistance of counsel at the preliminary hearings was not violative of appellants' right to due process. We find no merit in the other points raised by appellants.

The judgments should be affirmed.

Judgments affirmed.

MARSH, J.P., and SIMONS, J., concur.

MOULE and CARDAMONE, JJ., dissent and vote to reverse the judgment in an opinion by MOULE, J.

MOULE, Justice (dissenting):

On March 19, 1971, 17-year-old Leticia Calloway was adjudicated a youthful offender and sentenced to a four-year reformatory term at Bedford Hills Correctional Facility. On June 9, 1972 she was released on parole and, on June 26 she was arrested for parole violation pursuant to a detention warrant issued that day by the New York State Board of Parole. She was charged with violating crufew by remaining away from home one night, failing to seek gainful employment and making an untruthful report to the parole officer that she had spent most of her time in her room watching television.

The report of violation of parole prepared by her parole officer indicates that after her arrest relator was 'interrogated at the Monroe County Jail' on June 29, 1972 by the parole officer and that there was 'considerable discussion' during which she made certain admissions.

On July 14, 1972 relator instituted a habeas corpus proceeding, returnable July 25, seeking her release and, on July 19 the Board of Parole declared her delinquent as of June 23, and ordered that she be returned to the correctional facility. Special Term by an intermediate order dated July 27, 1972 directed that relator be released unless she was given a preliminary hearing as mandated by Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, decided June 29, 1972 prior to August 8, 1972, but denied her request for counsel at such hearing and stayed the Division of Parole from conducting a parole revocation hearing pending a final order.

On August 3, 1972 relator received written notice that a hearing would be held the next day. At the hearing she admitted remaining away from home overnight and that she neither made an application nor had an interview where she claimed to have sought work; her parole officer also testified. The hearing officer found that there was probable cause to hold relator for a parole revocation hearing.

Relator Robinson's fact situation is similar to that of Calloway. Adjudicated a youthful offender on June 3, 1968 ¹ when she was 16 years old, she was paroled on July 17, 1969, recommitted, and...