People ex rel. Combs v. LaVallee

• Decision Date: 28 March 1967
• Citation: 53 Misc.2d 281,278 N.Y.S.2d 287
• Parties: The PEOPLE of the State of New York ex rel. Willie COMBS, Relator, v. J. Edwin LaVALLEE, as Warden of Auburn Prison, Auburn, New York, Respondent.
• Court: New York Supreme Court

Page 287

278 N.Y.S.2d 287

53 Misc.2d 281

The PEOPLE of the State of New York ex rel. Willie COMBS, Relator, v. J. Edwin LaVALLEE, as Warden of Auburn Prison, Auburn, New York, Respondent.

Supreme Court, Cayuga County.

March 28, 1967.

Albert S. Pergman, New York City, petitioner and attorney for relator, in support of application.

MEMORANDUM

ARTHUR ERVIN BLAUVELT, Justice.

Relator, an inmate of Auburn Prison, has presented a petition for a Writ of Habeas Corpus, verified by his attorney-petitioner March 21, 1967.

The petition is defective in that a copy of the mandate by virtue of which relator is detained is not annexed thereto, as required by CPLR, § 7002(c) 1. However, this omission in this instance will be waived, as the necessary material facts of the underlying conviction can be gleaned from the petition and they have been verified by reference to reported opinions of other courts rendered in previous applications made by this same relator. (People v. Combs, 19 A.D.2d 639, 241 N.Y.S.2d 104, cert. den. 385 U.S. 878, 87 S.Ct. 157, 17 L.Ed.2d 105; United States ex rel. Combs v. Denno, D.C., 231 F.Supp. 942, affd. 2 Cir., 357 F.2d 809, cert. den., 385 U.S. 872, 87 S.Ct. 144, 17 L.Ed.2d 99.)

On October 20, 1960 relator was indicted in Kings County Court upon a charge of murder in the first degree. On January 30, 1961 he interposed a plea of guilty of manslaughter in the second degree, in satisfaction of the indictment. On April 11, 1961, based upon his acknowledgement of a prior felony conviction in the State of Georgia, he was adjudicated a second felony offender and judgment of conviction of manslaughter in the second degree was rendered by the County Court of Kings County, New York, and a sentence of seven and a half to fifteen years in state prison was pronounced thereon. On November 9, 1965, relator was released from state prison on parole. He was declared delinquent as of November 10, 1965 for failure to report to his parole officer. He was arrested in Newark, New Jersey on January 31, 1966 as a parole violator and on March 25, 1966, following extradition proceedings, was returned to Sing Sing Prison. In April of 1966, the Parole Board held a hearing with respect to the alleged violation of parole and made a determination that relator was a parole violator. He was remanded to the custody of the Warden of Sing Sing Prison to serve the balance of his original sentence of 7 1/2 to 15 years, no credit being given for the period from November 10, 1965, the date as of which relator was declared delinquent, to the date of his return to custody. On or about November 3, 1966, relator was transferred to Auburn Prison where he is presently incarcerated and serving his sentence of imprisonment.

This present application is based solely upon relator's contention that his present detention is unconstitutional because he was denied the right to be represented by his counsel before the Parole Board at the April 1966 hearing on the violation of parole charges. Specifically, relator claims that the procedure of the Parole Board in revoking his parole, following a hearing at which he was denied the right to be represented by counsel, was in violation of the due process and right to counsel clauses of the United States and New York State Constitutions. It is the opinion of this court that this application is without merit.

The New York State statute which governs the holding of a hearing by the Board of Parole upon a violation of parole charge states, in part:

'Correction Law, § 218.

* * *. Thereupon, such board of parole shall, as soon as practicable, hold a parole court at such prison or institution and consider the case of such parole violator, who shall be given an opportunity to appear personally, But not through counsel or others, before such board of parole and explain the charges made against him. * * *.' (Italics supplied)

In denying the request of relator to be represented by his counsel at the parole violation hearing, the Board of Parole was following the mandate of the statute.

The procedure followed by the ...