People ex rel. Coleman v. Smith
| Decision Date | 08 April 1980 |
| Citation | 427 N.Y.S.2d 108,75 A.D.2d 706 |
| Parties | PEOPLE of the State of New York ex rel. Clarence COLEMAN, Appellant, v. Harold J. SMITH, Superintendent, Attica Correctional Facility, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Nathaniel A. Barrell, by Leigh Anderson, Buffalo, for appellant.
Robert Abrams, Atty. Gen., Albany, by Kenneth E. Graber, Asst. Atty. Gen., Buffalo, for respondent.
Before CARDAMONE, J. P., and SIMONS, SCHNEPP, DOERR and MOULE, JJ.
In 1965 petitioner was convicted of manslaughter first degree and sentenced to an indeterminate term of 10-20 years imprisonment. He was subsequently released on parole in 1971, violated and returned to prison and re-released on parole on August 8, 1977. In 1978, as the result of an incident during which petitioner's neighbor was cut with a meat cleaver, the Board of Parole found that petitioner had violated the terms and conditions of his parole in that he failed to lead a law-abiding life and had consumed alcoholic beverages to excess.
In this habeas corpus proceeding, petitioner first challenges the hearing officer's findings of fact but we view the evidence as sufficient to sustain the charges (see People ex rel. Wallace v. State of New York, 70 A.D.2d 781, 417 N.Y.S.2d 531).
The hearing officer recommended that petitioner be returned to prison and not considered for re-parole until the expiration of two years. That recommendation was modified by the Parole Board and petitioner was placed upon a 30-month hold "due to (his) continuous assaultive behaviour." Petitioner contends that the Board had no power to modify the hearing officer's recommendation or to extend the hold beyond 24 months and that even if it did, the Board's action was improper because it considered an additional criminal assault charge recited in the history supplied by petitioner's parole officer but which had been withdrawn subsequently by the complainant. The trial court found that although the criminal charges had been withdrawn, the underlying facts of the assault were supported in the record.
The hearing officer's recommendation was advisory and not binding on the Board (see Matter of Simpson v. Wolansky, 38 N.Y.2d 391, 394, 380 N.Y.S.2d 630, 343 N.E.2d 274.) The ultimate power to order re-incarceration and fix a date for release rested with the Parole Board or a member acting on its behalf (see Executive Law, § 259-i, subd. 3, par. (f), d(x)). In doing so the Board had the...
To continue reading
Request your trial
-
Mayfield v. Evans
...N.Y.S.2d 328 [2011], lv. denied 17 N.Y.3d 703, 929 N.Y.S.2d 93, 952 N.E.2d 1088 [2011]; [93 A.D.3d 103] People ex rel. Coleman v. Smith, 75 A.D.2d 706, 707, 427 N.Y.S.2d 108 [1980], lv. denied 50 N.Y.2d 804, 431 N.Y.S.2d 1026, 410 N.E.2d 752 [1980] ), or any of the strictures of Executive L......
-
People ex rel. Grimmick, on Behalf of Zakrzewski v. McGreevy
...period of incarceration for the parole violator before he [is] entitled to be considered for reparole" ( People ex rel. Coleman v. Smith, 75 A.D.2d 706, 707, 427 N.Y.S.2d 108, lv. denied 50 N.Y.2d 804, 431 N.Y.S.2d 1026, 410 N.E.2d 752; see, 9 NYCRR 8005.20 [c] [1]; [d] ). The Executive Law......
-
Augle v. New York State Bd. of Parole
...for eight months before being reconsidered was not binding upon respondent (see, 9 NYCRR 8005.20[c][1]; [d]; People ex rel. Coleman v. Smith, 75 A.D.2d 706, 427 N.Y.S.2d 108, lv. denied 50 N.Y.2d 804, 431 N.Y.S.2d 1026, 410 N.E.2d We also find petitioner's reliance on People ex rel. Johnson......
-
Otero v. New York State Bd. of Parole
...reincarceration and fix a date for rerelease rest[s] with the Parole Board or a member acting on its behalf" (People ex rel. Coleman v. Smith, 75 A.D.2d 706, 707, 427 N.Y.S.2d 108, lv. denied 50 N.Y.2d 804, 431 N.Y.S.2d 1026, 410 N.E.2d 752; see, 9 NYCRR 8005.20[b]; Executive Law § 259-i [f......