People ex rel. Gillman v. New York State Bd. of Parole

• Decision Date: 16 April 1984
• Citation: 474 N.Y.S.2d 577,100 A.D.2d 917
• Parties: The PEOPLE, etc., ex rel. Steve GILLMAN, Appellant, v. NEW YORK STATE BOARD OF PAROLE et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 577

474 N.Y.S.2d 577

100 A.D.2d 917

The PEOPLE, etc., ex rel. Steve GILLMAN, Appellant, v. NEW YORK STATE BOARD OF PAROLE et al., Respondents.

Supreme Court, Appellate Division Second Department.

April 16, 1984.

William D. Gibney and David C. Leven, New York City, for appellant.

Robert Abrams, Atty. Gen., New York City (Melvyn R. Leventhal, Gerald J. Ryan and Burton Herman, Asst. Attys. Gen., New York City, of counsel), for respondents.

Before BRACKEN, J.P., and NIEHOFF, RUBIN and LAWRENCE, JJ.

MEMORANDUM BY THE COURT.

In a habeas corpus proceeding, the petitioner appeals (1) from a judgment of the Supreme Court, Queens County, dated September 15, 1983, which dismissed the writ, and (2) as limited by his brief, from so much of an order of the same court, dated December 8, 1983, as, upon reargument, adhered to its prior determination.

Appeal from the judgment dismissed, without costs or disbursements. Said judgment was superseded by the order dated December 8, 1983.

Order affirmed insofar as appealed from, without costs or disbursements.

Under the circumstances of this case, the respondent parole board met its burden of showing that the appellant was beyond its convenience and practical control during his Florida incarceration (see People ex rel. Gonzales v. Dalsheim, 52 N.Y.2d 9, 436 N.Y.S.2d 199, 417 N.E.2d 493; People ex rel. Walsh v. Vincent, 40 N.Y.2d 1049, 1050, 392 N.Y.S.2d 240, 360 N.E.2d 919; Matter of Higgins v. New York State Div. of Parole, 72 A.D.2d 583, 420 N.Y.S.2d 932). The parole board made three specific requests for the return of the appellant to New York so that he could be provided a prompt hearing on the revocation of his parole (Executive Law, § 259-i, subd. 3, par. [c], cl. [i], par. [f], cl. [i]; cf. People ex rel. Horan v. New York State Div. of Parole, 91 A.D.2d 1053, 458 N.Y.S.2d 657). The Florida officials responded to the second request, essentially stating that the parole board would be advised approximately 30 days prior to the expiration of the appellant's Florida sentence. No answer was received to the third and final request which, like the previous requests, advised the Florida authorities of the Court of Appeals' decision in People ex rel. Gonzales v. Dalsheim (supra). The appellant's contention that statements in the first two requests were designed to discourage Florida's co-operation is meritless. The language complained of indicated to the Florida authorities that if the appellant's New York...