People ex rel. Dowdy v. Smith

• Decision Date: 15 December 1978
• Citation: 411 N.Y.S.2d 472,65 A.D.2d 285
• Parties: PEOPLE of the State of New York ex rel. Edward DOWDY By Donald H. Zuckerman, Respondent, v. Harold J. SMITH, Superintendent, Attica Correctional Facility, New York State Board of Parole, Appellants.
• Court: New York Supreme Court — Appellate Division

Page 472

411 N.Y.S.2d 472

65 A.D.2d 285

PEOPLE of the State of New York ex rel. Edward DOWDY By Donald H. Zuckerman, Respondent, v. Harold J. SMITH, Superintendent, Attica Correctional Facility, New York State Board of Parole, Appellants.

Supreme Court, Appellate Division, Fourth Department.

Dec. 15, 1978.

Louis J. Lefkowitz, Atty. Gen., Albany, for appellants (Kenneth Graber, Buffalo, of counsel).

Donald H. Zuckerman, New York City, for respondent.

Before CARDAMONE, J. P., and DILLON, HANCOCK, SCHNEPP and WITMER, JJ.

HANCOCK, Justice:

In February 1978 relator was acquitted of several counts of unlawfully and knowingly selling and possessing heroin, after a jury trial in which he had asserted entrapment as an affirmative defense. After a parole revocation hearing on March 28, 1978 the parole board found relator guilty of parole violations and revoked his parole for the conduct underlying the criminal charges. Special Term has held that the parole board was precluded by the doctrine of collateral estoppel from revoking relator's parole because of the acquittals. From a judgment granting relator's petition for a writ of habeas corpus, the state has appealed. We reverse.

On May 5, 1977 relator, a multiple felony offender, then on parole under concurrent sentences for Robbery in the first degree and felonious Possession of a Weapon, was arrested upon two indictments arising out of acts committed on December 17, 1976 and January 19, 1977. He was charged with several counts of first degree Criminal Sale of a Controlled Substance (Penal Law, § 220.43), first and third degree Criminal Possession of a Controlled Substance (Penal Law, §§ 220.21 & 220.16) and one count of first degree Conspiracy (Penal Law, §§ 105.15 & 220.43). Also on May 5, 1977 relator was served with a parole violation notice alleging that he had violated General Parole Rule 12 ^* by possessing heroin and selling it to a police officer on the same dates (December 17, 1976 and January 19, 1977). After a jury trial in February, 1978 at which he interposed the affirmative defense of entrapment, relator was acquitted on all counts. At the final revocation hearing on March 28, 1978 the state adduced testimony from the undercover police officer to the effect that he had paid relator $6,250.00 for 1/8 of a kilo of heroin on December 17, 1976 and $2,000.00 for 7/8 of an ounce of heroin on January 19, 1977. The state also introduced, over objection, the entire transcript of relator's trial testimony which contained admissions as to his possession and sale of the drugs. Although given a full opportunity to present evidence in his defense, relator offered none. Nor did he introduce any other portion of the trial transcript. Instead, relator grounded his defense upon the doctrine of collateral estoppel and read the entrapment statute (Penal Law, § 40.05) into the record. In its decision the parole board sustained both violations, principally on the testimony of the detective and on relator's admissions made at trial. The board stated specifically that "no evidence was presented to support the defense of entrapment, and entrapment was therefore not considered."

It is settled that a parole revocation hearing is not part of a criminal prosecution but an administrative hearing "to determine whether a parolee has violated the conditions of his parole (Corrections Law, § 212, subd. 7)." (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, Quoted in People ex rel. Warren v. Mancusi, 40 A.D.2d 279, 281, 339 N.Y.S.2d 882, 885; see Morrissey v. Brewer, 408 U.S. 471, 479-180, 92 S.Ct. 2593, 33 L.Ed.2d 484.) The revocation hearing "must be the basis for more than determining probable cause; it must lead to a final evaluation of any contested relevant facts and consideration of whether the facts as determined warrant revocation. The parolee must have an opportunity to be heard and to show, if he can, that he did not violate the conditions, or, if he did, that circumstances in mitigation suggest that the violation does not warrant revocation." (Morrissey v. Brewer, supra, 408 U.S. 471, 488, 92 S.Ct. 2593, 2603, 33 L.Ed.2d 484.)

The parole board is vested with broad discretion in making determinations on parole revocations and so long as the board "violates no positive statutory requirement, its discretion is absolute and beyond review in the courts." (Matter of Hines v. State Board of Parole, 293 N.Y. 254, 257, 56 N.E.2d 572, 573; Matter of Tomarkin v. Bombard, 56 A.D.2d 881, 392 N.Y.S.2d 478; Solari v. Vincent, 46 A.D.2d 453, 363 N.Y.S.2d 332; People ex rel. West v. Vincent, 46 A.D.2d 782, 783, 360 N.Y.S.2d 696, 698; Matter of Mummiami v. State Board of Parole, 5 A.D.2d 923, 171 N.Y.S.2d 1018; Matter of Tinsley v. State Board of Parole, 73 Misc.2d 289, 295, 342 N.Y.S.2d 259, 266; Correction Law, § 212, subd. 10.) Relator, however, seeks not to review the parole board's discretionary determination, but contends solely that by virtue of the rule of collateral estoppel, held by the Supreme Court to be embodied in the Fifth Amendment guaranty against double jeopardy (Ashe v. Swenson, 397 U.S. 436, 442, 90 S.Ct. 1189, 25 L.Ed.2d 469), the board was barred from finding him guilty of the asserted violations. Since the decision of the Court of Appeals in Schwartz v. Public Administrator it has been established that the two necessary requirements for the application of the doctrine of collateral estoppel are that, first, there "must be an identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and, second, there must have been a full and fair opportunity to contest the decision now said to be controlling." (Schwartz v. Public Administrator, supra, 24 N.Y.2d 65, 71, 298 N.Y.S.2d 955, 960, 246 N.E.2d 725, 729, see S. T. Grand, Inc. v. City of New York, 32 N.Y.2d 300, 304, 344 N.Y.S.2d 938, 941, 298 N.E.2d 105, 107.) The factual issue in the subsequent proceeding must be "identical in all respects with that decided in the first proceeding." (Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591, 599-600, 68 S.Ct. 715, 720, 92 L.Ed. 898.) Furthermore, "the adjudication in the first case does not estop the parties in the second, unless the matter raised in the second case involves substantially 'the same bundle of legal principles that contributed to the rendering of the first judgment.' " (Neaderland v. Commissioner of Internal Revenue, 424 F.2d 639, 642 (2d Cir.), cert. denied, 400 U.S. 827, 91 S.Ct. 53, 27 L.Ed.2d 56, Quoting, Commissioner of Internal Revenue v. Sunnen, supra, 333 U.S. 591, 601, 68 S.Ct. 715, 92 L.Ed. 898.)

In New York, courts applying the identity of issue test have held that the return of a no-bill by a grand jury does not prevent subsequent parole revocation proceedings on the underlying charges because "the standard by which the Grand Jury operates (CPL 190.65, subd. 1) is not identical to that governing the parole authorities." (People ex rel. West v. Vincent, supra, 46 A.D.2d 787, 360 N.Y.S.2d 698.) (Cf. People ex rel. Natoli v. Lewis, 287 N.Y. 478, 41 N.E.2d 62, holding that jurisdiction once obtained by the parole board after the indictment of a parolee on a felony charge is not lost by a subsequent finding of not guilty of the crime charged.) In Perry v. Blair, App.Div., 407 N.Y.S.2d 371, we held that disciplinary proceedings against a police officer were not barred by an acquittal in a criminal trial, stating that an "acquittal . . . rests upon a failure of proof beyond a reasonable doubt and is not a conclusive finding of innocence or non-participation in the underlying acts charged in the disciplinary complaint lodged against petitioner . . . and the prior acquittal does not foreclose the determination of guilt in this proceeding (Scales v. Maxwell, 52 A.D.2d 719, 382 N.Y.S.2d 171)." (Perry v. Blair, App.Div., 407 N.Y.S.2d 371, 373, supra.) In the only New York decision which we have found applying to parole revocation after an acquittal on the underlying charge, the Appellate Division, second department, without discussing collateral estoppel, held that the action of the board in revoking parole was not arbitrary or capricious (Matter of Mummiami v. State Board of Parole, 5 A.D.2d 923, 171 N.Y.S.2d 1018, supra).

In several federal and out-of-state decisions courts have held that an acquittal in a criminal proceeding does not preclude revocation of parole for the same conduct on which the criminal charge was based (see Standlee v. Rhay, 557 F.2d 1303 (9th Cir.); In re Dunham, 16 Cal.3d 63, 127 Cal.Rptr. 343, 545 P.2d 255, cert. denied, 429 U.S. 836, 97 S.Ct. 103, 50 L.Ed.2d 102; In re Coughlin, 16 Cal.3d 52, 127 Cal.Rptr. 337, 545 P.2d 249; State v. Jameson, 112 Ariz. 315, 541 P.2d 912; Russ v. State, 313 So.2d 758 (Fla.), cert. denied, 423 U.S. 924, 96 S.Ct. 267, 46 L.Ed.2d 250; Standlee v. Smith, 83 Wash.2d 405, 518 P.2d 721; Ware v. State, 219 So.2d 442 (Fla.App.); Scott v. State, 238 Md. 265, 208 A.2d 575; contrast People v. Grayson, 58 Ill.2d 260, 319 N.E.2d 43, cert. denied, 421 U.S. 994, 95 S.Ct. 2001, 44 L.Ed.2d 484). In Standlee v. Rhay, 557 F.2d 1303, the Ninth Circuit Court of Appeals explained the rationale of such holdings, stating at pp. 1305-1306 that: "(t)he difference in burdens of proof . . . usually precludes application of collateral estoppel . . . (and the) nature of the sanction imposed by a proceeding also is determinative of whether collateral estoppel applies. Thus, an 'acquittal on a criminal charge is not a bar to a civil action by the Government, Remedial in its nature, arising out of the same facts on which the criminal proceeding was based . . . .' Helvering v. Mitchell, supra, 303 U.S. (391) at 397, 58 S.Ct. (630) at 632, 82 L.Ed. 917 (emphasis added)", and further that: it is "well established that parole revocation is . . . remedial rather than punitive, since it seeks to protect the welfare of...