People ex rel. Gillispie v. Warden, House of Detention for Men

• Decision Date: 02 March 1993
• Parties: The PEOPLE of the State of New York ex rel. Christopher GILLISPIE, Relator-Appellant, v. WARDEN, HOUSE OF DETENTION FOR MEN, New York State Division of Parole, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 184

594 N.Y.S.2d 184

191 A.D.2d 161

The PEOPLE of the State of New York ex rel. Christopher

GILLISPIE, Relator-Appellant, v. WARDEN, HOUSE OF DETENTION FOR MEN, New York State Division

of Parole, Respondent.

Supreme Court, Appellate Division,

First Department.

March 2, 1993.

Before MILONAS, J.P., and WALLACH, ASCH and RUBIN, JJ.

MEMORANDUM DECISION.

Judgment of the Supreme Court, Bronx County (John Byrne, J.), entered on or about July 24, 1991, dismissing petitioner's writ of habeas corpus, is unanimously affirmed, without costs or disbursements.

Petitioner was released to parole supervision on April 26, 1989 after having served concurrent sentences of 5 to 10 years and 4 and one-half to 9 years for the crimes of robbery in the second degree and attempted robbery in the first degree. Thereafter, on the morning of October 3, 1990, a .22 caliber handgun was recovered by the police from a clothes hamper in petitioner's bedroom on the second floor of a house at 669 St. Johns Place in Brooklyn where his grandmother and girlfriend also apparently resided. Other firearms and live ammunition were seized from various locations in the house, as well as a quantity of marijuana, cocaine and scales. However, the ensuing parole revocation charge that was sustained was based upon the gun found in petitioner's bedroom; the remaining charges concerning the weapons and ammunition discovered elsewhere in the residence were dismissed.

In challenging his parole revocation, petitioner contends that there was no proof that the weapon removed from his bedroom was operable notwithstanding that the charge relating thereto specified its operability. In that regard, it should be noted that petitioner's counsel did not raise this issue at the revocation hearing and never objected to the failure of respondent New York State Division of Parole to introduce a ballistics report. Since the operability of the .22 caliber handgun was never advanced at the hearing, it is not preserved for review. Moreover, while a parolee is certainly entitled to due process rights at a revocation hearing (People ex rel. McGee v. Walters, 62 N.Y.2d 317, 476 N.Y.S.2d 803, 465 N.E.2d 342; People ex rel. Matthews v. New York State Division of Parole, 58 N.Y.2d 196, 460 N.Y.S.2d 746, 447 N.E.2d 689), it is "recognized that a parole revocation hearing is different from a criminal trial conducted to determine guilt or innocence, and is, instead, an administrative proceeding at which it is...