People ex rel. Gambino v. Warden of City Prison of City of New York

• Decision Date: 14 February 1974
• Citation: 43 A.D.2d 400,352 N.Y.S.2d 200
• Parties: The PEOPLE of the State of New York ex rel. Philip GAMBINO, Relator-Appellant, v. WARDEN OF the CITY PRISON OF the CITY OF NEW YORK, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 200

352 N.Y.S.2d 200

43 A.D.2d 400

The PEOPLE of the State of New York ex rel. Philip GAMBINO Relator-Appellant, v. WARDEN OF the CITY PRISON OF the CITY OF NEW YORK, Respondent.

Supreme Court, Appellate Division, First Department.

Feb. 14, 1974.

David M. Markowitz, New York City (Conrad F. Ferrigno, New York City, with him on the brief), for relator-appellant.

Margery Evans Reifler, New York City, of counsel (Samuel A. Hirshowitz, New York City, with her on the brief; Louis J. Lefkowitz, Atty. Gen.), for respondent.

Before MARKEWICH, J.P., and NUNEZ, MURPHY and STEUER, JJ.

STEUER, Justice:

The relator in this habeas corpus proceeding was convicted of burglary in 1964. He was paroled in February 1971. On May 3, 1972, his parole was revoked and, after a hearing on June 29, 1972, he was declared delinquent. Thereafter he sued out a writ of habeas corpus. The issue on the return of the writ was whether relator was accorded due process on the hearing which declared him delinquent.

Respondent's first contention is that the hearing was prior to the decision of the United States Supreme Court in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, and that as the decision is prospective only the guidelines or rules therein laid down do not apply. Actually the hearing was held on the same day that the Morrissey decision was handed down, and we would agree that this case should be considered as one processed before the decision was rendered. However, the reasoning that the decision is not applicable confuses a decision with a statute. While a statute is usually prospective, a decision announces the law as it is. It is true that a court of last resort in declaring what procedures are to be regarded as due process not infrequently indicates that decisions theretofore made will not be upset for failure to conform. However, this pragmatic method of handling situations is not absolute. Where the procedure condemned constitutes a basis denial of due process it may well be applied to procedures held before the statement of rules by the court.

We turn now to what took place at the hearing. Relator was represented by counsel and his counsel was duly informed as to the specifications charged as violations. There were three violations, but relator was only found to be delinquent as to two of these--consorting with a known criminal and leaving the City of New York without seeking permission from his parole officer. Under the particular circumstances there can be no question that these violations, which may appear technical, could well warrant the action taken by the respondent. The procedure adopted by the board, through its hearing officer, was to read the specifications of the charge to relator, make sure that he understood what was read to him, and ask for his comment.

So far the procedure appears unexceptional. If the parolee admits the facts it would appear that no formal proof would be required. Here the relator, through his counsel, denied that he knew the person (one Yacovelli) he was charged with associating with was a criminal, and flatly denied that he had left the City of New York or was present in Nyack on the occasion charged. His counsel also argued that the allegations of the charges were inherently improbable. At this point it is beyond cavil that an issue was raised. Nothing further transpired, and the board decided the issue against the relator, perforce on the information supplied to it and contained in the specifications of the charges.

Even before Morrissey our Court of Appeals held that provisions in the Correction Law which...