People ex rel. Diamond v. Flood

Decision Date19 March 1984
Citation100 A.D.2d 604,473 N.Y.S.2d 558
PartiesThe PEOPLE, etc., ex rel. Paul DIAMOND, Appellant, v. Walter J. FLOOD, Warden, etc., et al., Respondents.
CourtNew York Supreme Court — Appellate Division

Matthew Muraskin, Mineola (Michael Obus and Robert J. Raubach, Mineola, of counsel), for appellant.

Robert Abrams, Atty. Gen., New York City (Melvyn Leventhal, Gerald J. Ryan and Barbara Linzer, Asst. Attys. Gen., New York City, of counsel; Eric Michael Bukatman on the brief), for respondents.

Before TITONE, J.P., and GIBBONS, BRACKEN and RUBIN, JJ.

MEMORANDUM BY THE COURT.

In a habeas corpus proceeding, petitioner appeals from a judgment of the Supreme Court, Westchester County (DACHENHAUSEN, J.), entered April 7, 1983, which dismissed the writ.

Judgment reversed, on the law, without costs or disbursements and matter remitted to the New York State Board of Parole for a factual determination as to whether the failure to hold a final parole revocation hearing on January 17, 1983 is attributable to the petitioner or the New York State Board of Parole and for further proceedings consistent herewith.

The parties agree that the sole issue in this case is whether the failure to hold a scheduled final parole revocation hearing on January 17, 1983 is chargeable to the petitioner or to the New York State Board of Parole. If the former, then the final hearing, eventually held on February 10, 1983, was conducted within the 90-day limit prescribed by statute (Executive Law, § 259-i, subd. 3, par. [f], cl. [i] ). If the latter, then the hearing was untimely, and the petitioner must be restored to parole status (People ex rel. Levy v. Dalsheim, 66 A.D.2d 827, 411 N.Y.S.2d 343, affd. 48 N.Y.2d 1019, 425 N.Y.S.2d 802, 402 N.E.2d 141).

According to the petition, signed by counsel, the petitioner did not attend the scheduled hearing on January 17, 1983, thereby resulting in an adjournment, because he was compelled to attend court with respect to certain traffic tickets. Specifically, on the morning in question a corrections officer at the Suffolk County Correctional Facility allegedly ordered petitioner "to take his place in line for transportation to court" and said that "he would be physically forced to go to court if he attempted not to do so". He was returned to the jail at 4:00 P.M. Petitioner claims that the failure to hold the hearing "was the fault of the [parole board] who [sic ] failed to telephone the correctional facility to ensure that the date of the hearing was not a court date for petitioner[,] who [sic ] failed to make arrangements to conduct the hearing at the courthouse[, and] who [sic ] preferred making it an early day rather than waiting until petitioner's return to the correctional facility from the court".

Special Term dismissed the writ, apparently on the ground that the petitioner's attendance in court on January 17, 1983 constituted an action precluding the prompt conduct of the parole revocation hearing (Executive Law, § 259-i, subd. 3, par. [f], cl. [i] ).

In effect, both the petitioner and the board argue for the adoption of a per se rule, petitioner being a proponent of the position that a court attendance should never be counted against the alleged parole violator, and the board espousing the view that if the alleged violator attends court instead of a scheduled hearing, it is his or her fault, not the board's. We disagree with both positions.

There may well be cases, as suggested by the petitioner, where, despite a scheduled court appearance, the board could still hold a hearing within the statutory time frame. Whether this could be done by rescheduling, conducting the hearing elsewhere or at a different time, or by some other expedient, would differ with the circumstances. In general, the board is obligated to conduct a prompt hearing whenever the alleged violator is within the board's practical convenience and control (People ex rel. Gonzalez v. Dalsheim, 52 N.Y.2d 9, 436 N.Y.S.2d 199, 417 N.E.2d 493). There is no reason to presume that attendance at court by the parolee necessarily takes that individual out of...

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8 cases
  • People ex rel. Robertson v. New York State Div. of Parole
    • United States
    • New York Court of Appeals Court of Appeals
    • April 3, 1986
    ...was being illegally detained. Within a few days after that order, however, the Appellate Division decided People ex rel. Diamond v. Flood, 100 A.D.2d 604, 605, 473 N.Y.S.2d 558, in which it remitted to the Parole Board a prompt hearing question and noted "that, in the future, parolees will ......
  • People ex rel. Brown v. New York State Div. of Parole
    • United States
    • New York Court of Appeals Court of Appeals
    • November 17, 1987
    ...for the sole purpose of ensuring that the parole hearing will not be held within the 90-day period (see, People ex rel. Diamond v. Flood, 100 A.D.2d 604, 605, 473 N.Y.S.2d 558). It cannot be successfully argued, however, that relator abused the system in this case. Prior to the February 24 ......
  • People ex rel. Alexander v. LeFevre
    • United States
    • New York Supreme Court — Appellate Division
    • January 16, 1986
    ...to constitute a waiver of a prompt hearing, petitioner's refusal to attend would have had to cause the delay (People ex rel. Diamond v. Flood, 100 A.D.2d 604, 605, 473 N.Y.S.2d 558; People ex rel. Sincento v. New York State Bd. of Parole, 78 A.D.2d 574, 432 N.Y.S.2d 418). Since petitioner's......
  • People ex rel. Cope v. Pauley
    • United States
    • New York Supreme Court
    • January 21, 1985
    ...petitioner's constitutional rights were not fully protected by the parole hearing officer. Lastly, the case of People ex rel. Diamond v. Flood, 100 A.D.2d 604, 473 N.Y.S.2d 558 (Second Dept.1984) relied upon by the respondent, in this court's view, does not stand for the unequivocal proposi......
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