People ex rel. Combs v. LaVallee

• Decision Date: 11 January 1968
• Citation: 286 N.Y.S.2d 600,29 A.D.2d 128
• Parties: PEOPLE of the State of New York ex rel. Willie COMBS, Appellant, v. J. Edwin LaVALLEE, Warden, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 600

286 N.Y.S.2d 600

29 A.D.2d 128

PEOPLE of the State of New York ex rel. Willie COMBS, Appellant, v. J. Edwin LaVALLEE, Warden, Respondent.

Supreme Court, Appellate Division, Fourth Department.

Jan. 11, 1968.

Albert S. Pergam, New York City, for appellant.

Louis J. Lefkowitz, Albany, for respondent, Robert A. Contiguglia, Auburn, William S. Elder, Jr., and, Ruth Kessler Toch, Albany, of counsel.

Before WILLIAMS, P.J., and BASTOW, GOLDMAN, HENRY and MARSH, JJ.

OPINION

BASTOW, Justice:

In 1961 relator as a second offender was sentenced to a term of 7 1/2 to 15 years imprisonment. Some four years later he was released on parole and subsequently was declared delinquent allegedly for failure to report to a parole officer.

During these intervening years relator sought post-conviction relief in both State and Federal courts. (See People v. Combs, 19 A.D.2d 639, 241 N.Y.S.2d 104; 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). In the United States Court of Appeals one Stephen R. Barnett, an attorney in New York City, was designated to represent relator (United States ex rel. Combs v. Denno, 2 Cir., 357 F.2d 809, 812).

It appears that after appellant had absconded from parole supervision this attorney was of some assistance to the authorities in locating relator in New Jersey where he was arrested and returned to this State. During this period of three months Mr. Barnett was in communication with the parole authorities. After relator's return to this jurisdiction the attorney by letter inquired 'as to the opportunity for Combs to be represented by counsel at this forthcoming hearing' and offered to provide such legal representation. The offer was rejected with the summary statement that parolees were not entitled to be represented at such a hearing.

Thereafter, an associate of Mr. Barnett, who is now practicing outside of the State, brought this habeas corpus proceeding seeking the release of relator on the ground that his present detention is illegal because of the denial of his right to counsel at the revocation hearing. Special Term denied relief (53 Misc.2d 281, 278 N.Y.S.2d 287).

Section 218 of the Correction Law mandates the warden of a prison to notify the Board of Parole of the return of a paroled prisoner charged with violation of parole. '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.' An identical provision was contained in former Prison Law, section 218 added by chapter 485 of Laws of 1928.

The issue thus presented is whether or not the constitutional rights of appellant to be represented by counsel and to be afforded due process were violated by the refusal of the parole authorities to grant the request of Combs' counsel to be present at the 'parole court'. We conclude that they were.

We further conclude that this issue may be decided without regard to the Due Process Clause of the Fourteenth Amendment of the Federal Constitution but upon this State's decisional law and the constitutional provisions pertaining to the right to counsel and its guarantee of due process (N.Y.Const. Art. 1, § 6). A similar conclusion was reached in People v. Donovan, 13 N.Y.2d 148, 151, 243 N.Y.S.2d 841, 843, 193 N.E.2d 628, 629, where it was said that 'The right of an accused to counsel as a procedural safeguard in our system of government enjoys equal eminence' with the privilege against self-incrimination.

During recent years we have seen a gradual enlargement of the right to counsel of a defendant or of an accused or suspect. Thus, in a series of decisions such right has been extended from the trial itself to pretrial proceedings. (See People v. DiBiasi, 7 N.Y.2d 544, 200 N.Y.S.2d 21, 166 N.E.2d 825; People v. Waterman, 9 N.Y.2d 561, 216 N.Y.S.2d 70, 175 N.E.2d 445; People v. Meyer, 11 N.Y.2d 162, 227 N.Y.S.2d 427, 182 N.E.2d 103; People v. Rodriguez, 11 N.Y.2d 279, 229 N.Y.S.2d 353, 183 N.E.2d 651; People v. Donovan, 13 N.Y.2d 148, 243 N.Y.S.2d 841, 193 N.E.2d 628, supra). Finally, to implement Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, the right to counsel has been given to a suspect prior to questioning by law enforcement officers. (Cf. People v. McQueen, 18 N.Y.2d 337, 274 N.Y.S.2d 886, 221 N.E.2d 550.)

Similarly, the right to counsel has been enlarged as to post-conviction proceedings. Thus, in a revocation of probation proceeding where the statute (Code Crim.Proc. § 935) gives the alleged violator 'an opportunity to be heard' this court has held that the individual is entitled not only to counsel but to be informed of such right. (People v. Hamilton, 26 A.D.2d 134, 271 N.Y.S.2d 694; People v. Reynolds, 25 A.D.2d 487, 266 N.Y.S.2d 604.)

Whatever doubt may have existed as to the correctness of these decisions has been swept away by In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 and Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (decided November 13, 1967). Gault was a 15-year-old, who had been placed on probation by a Juvenile Court. Subsequently, he was returned to court on petition of a probation officer. The court summarily dismissed the contention that the probation officer or the judge could represent the youth and wrote, 387 U.S. 1, at page 36, 87 S.Ct. 1428, at page 1448, that 'There is no material difference in this respect between adult and juvenile proceedings of the sort here involved. In adult proceedings, this contention has been foreclosed by decisions of this Court' citing Powell v. State of Alabama, 287 U.S. 45, 61, 53 S.Ct. 55, 77 L.Ed. 158, and Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799. In Mempa, supra, the court enunciated the principle (389 U.S. at page 134, 88 S.Ct. at page 257) 'that appointment of counsel for an indigent is required at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected.'

It is recognized, as respondent contends, that there are basic differences between probation and parole. The obvious difference is that in the latter the court imposed sentence may not be changed. Second, it might be argued that a violation of parole is no part of a criminal proceeding. We do not view these differences as so vital that counsel should be mandated in the one and denied in the other.

The right to counsel is guaranteed 'in any trial in any court' (N.Y.Const. Art. 1 § 6). The Board of Parole is mandated to 'hold a parole court' at which the alleged violator is given the right 'to appear personally * * * and explain the charges made against him' (Correction Law, § 218). Indeed, the Board of Parole has recognized the similarity between such a hearing and a formal judicial proceeding. In...