People ex rel. Julio v. Walters

• Decision Date: 26 July 1982
• Parties: The PEOPLE, etc. ex rel. Marcelino JULIO, a/k/a Julio Marcelino, Appellant, v. Wilson WALTERS, Superintendent, Ossining Correctional Facility, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 888

452 N.Y.S.2d 888

88 A.D.2d 259

The PEOPLE, etc. ex rel. Marcelino JULIO, a/k/a Julio Marcelino, Appellant, v. Wilson WALTERS, Superintendent, Ossining Correctional Facility, et al., Respondents.

Supreme Court, Appellate Division Second Department.

July 26, 1982.

William E. Hellerstein and Donald H. Zuckerman, New York City (Roger Brazill, New York City, of counsel), for appellant.

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

Before DAMIANI, J. P., and MANGANO, GIBBONS and GULOTTA, JJ.

PER CURIAM.

In April, 1964 the petitioner, Marcelino Julio, was convicted in the Supreme Court, New York County, of the crime of manslaughter in the first degree and was sentenced to imprisonment for an indeterminate term of 15 to 25 years.

On January 10, 1973 petitioner was paroled with a maximum expiration date of March 15, 1989.

On December 10, 1975, while in Puerto Rico with permission of his parole officer petitioner was arrested on an indictment returned by a Federal Grand Jury in the Southern District of New York, charging violation of Federal drug laws.

In early January, 1976 petitioner was extradited to New York and incarcerated at the Metropolitan Correctional Center in Manhattan. On January 20, 1976 petitioner's parole officer visited him in Federal custody and questioned him about his arrest but did not serve him with parole violation charges.

On March 20, 1976 petitioner was found guilty of conspiracy to violate Federal narcotics laws. On April 1, 1976 the Board of Parole declared petitioner delinquent as of December 10, 1975 and issued a parole violation warrant against him. On April 27, 1976 petitioner was sentenced to a term of 7 1/2 years imprisonment on the Federal conviction.

On May 5, 1976 petitioner was transferred from the Metropolitan Correctional Center in New York City to the Federal Correctional Facility in Atlanta, Georgia.

On May 6, 1976 New York officials attempted to lodge the parole violation warrant at the Metropolitan Correctional Center. In light of the fact that petitioner had been transferred to Atlanta on the previous day, the warrant was forwarded to that facility where it was eventually lodged against petitioner.

On July 8, 1976 petitioner was notified by Federal authorities that the New York detainer warrant had been filed with the Sheriff of Fulton County, Georgia.

On or about July 27, 1976 petitioner formally requested the New York State Parole Board to conduct a prompt parole revocation hearing.

On August 5, 1976 L. V. Kavanaugh, Director of Parole Field Operations, wrote to petitioner stating in relevant part:

"Please be advised that the New York State Statutes do not mandate that any parole violator be given a final revocation hearing while he is serving a sentence in a foreign jurisdiction."

Petitioner again wrote to request a parole revocation hearing and on August 23, 1976 Mr. Kavanaugh replied stating in part:

"In regard to a hearing, please be advised that you will be given a hearing when you are returned to the State of New York."

On October 22, 1980 petitioner was released from Federal custody and was arrested on the detainer warrant by the Sheriff of Fulton County, Georgia.

On October 28, 1980 he was returned to New York.

On December 8, 1980 he was afforded a final parole revocation hearing. On the very same date, a writ of habeas corpus was issued on Julio's petition which alleged that the United States Bureau of Prisons had a policy (which was evinced by an exhibit annexed to the petition) of making Federal prisoners available to state authorities upon their request for the disposition of pending charges including parole revocation charges. The petition further alleged that had such a request been made by the New York State Board of Parole to the United States Bureau of Prisons, the petitioner could have received a prompt final parole revocation hearing in New York City.

In opposing the writ, the Attorney-General argued that a final parole revocation hearing had in fact been afforded petitioner on December 8, 1980 and that pursuant to numerous precedents, a parole violator incarcerated in a foreign jurisdiction was only entitled to a parole revocation hearing upon his return to the jurisdiction of the New York State Board of Parole.

On December 23, 1980 Special Term denied the application and dismissed the writ, holding that while petitioner was in Federal custody in Georgia he could not be "subject to the convenience and practical control of the Parole Board, and the final revocation hearing was not required to be given petitioner until his return to New York State". (See Correction Law, former § 212, subd. 7; Executive Law, § 259-i; People ex rel. Walsh v. Vincent, 40 N.Y.2d 1049, 392 N.Y.S.2d 240, 360 N.E.2d 919; Matter of Beattie v. New York State Bd. of Parole, 39 N.Y.2d 445, 384 N.Y.S.2d 397, 348 N.E.2d 873; Matter of Mullins v. Board of Parole, 43 A.D.2d 382, 351 N.Y.S.2d 757 app. dsmd. 35 N.Y.2d 992, 365 N.Y.S.2d 534, 324 N.E.2d 890; People ex rel. Spinks v. Dillon, 68 A.D.2d 368, 416 N.Y.S.2d 942; app. dsmd. 48 N.Y.2d 1025, 425 N.Y.S.2d 803, 402 N.E.2d 142.)

A motion to reargue was thereafter brought on by petitioner, relying on People ex rel. Gonzales v. Dalsheim, 52 N.Y.2d 9, 436 N.Y.S.2d 199, 417 N.E.2d 493 which held that even where a parolee was incarcerated in another jurisdiction it was incumbent on the parole board to show that a hearing could not be held subject to its convenience and practical control.

In effect granting the motion to reargue, and adhering to its original determination, Special Term specifically held, inter alia, that People ex rel. Gonzales v. Dalsheim (supra) should not be applied retroactively. Specifically, the court stated:

"The determination made by the respondent board in October 1980 were in keeping with the many appellate court decisions which * * * concluded that a parolee being held in an out-of-state prison is not within the convenience and practical control of the New York State Parole Board * * * This issue apparently has now been decided differently * * * by a vote of 4-3 by the Court of Appeals for the first time. When the respondent made its determination in the case at bar, it was made in accordance with the then law of the State of New York, and * * * should not be applied retroactively".

We agree with the holding of Special Term with respect to the issue of retroactivity.

Preliminarily, it must be stressed that petitioner's request in July, 1976 for a final parole revocation hearing and the Parole Board's answer to petitioner in August, 1976 that he would be given a hearing when he returned to New York not only predated the Court of Appeals decision in Gonzales, but also predated a similar holding of this court in the case of Matter of Higgins v. New York State Div. of Parole, 72 A.D.2d 583, 420 N.Y.S.2d 932, which was decided on October 22, 1979. It must be stressed that prior to Higgins, established case law was to the effect that the parole board did not have to afford a final parole revocation hearing to a person who was held in a prison in a foreign jurisdiction pursuant to a conviction for crimes committed therein. (See Matter of Mullins v. Board of Parole, 43 A.D.2d 382, 351 N.Y.S.2d 757, supra; People ex rel. Spinks v. Dillon, 68 A.D.2d 368, 416 N.Y.S.2d 942, supra.)

The crucial issue in this case therefore is whether the decisions in Higgins and Gonzales should be construed to apply retroactively to events which transpired in 1976, long before they were decided. We are of the view that the question posed must be answered in the negative.

It is the general rule that a decision which overrules a prior decision is to be given retroactive application to all those cases in the judicial process then pending and undecided, including those on appeal (see Ann. Prospective or Retroactive Operation of Overruling Decision, 10 A.L.R.3d 1371, § 4). Pursuant to this rule appellate courts generally give effect to the law as it exists at the time their decisions are rendered (People v. Loria, 10 N.Y.2d 368, 223 N.Y.S.2d 462, 179 N.E.2d 478; Knapp v. Fasbender, 1 N.Y.2d 212, 243, 151 N.Y.S.2d 668, 134 N.E.2d 482; Matter of Tartaglia v. McLaughlin, 297 N.Y. 419, 424, 79 N.E.2d 809).

Although there has been a traditional policy of retroactive application, it is now well established that courts have the power to apply an overruling decision purely prospectively and to declare that the rule announced by the overruling decision will operate only upon future transactions or events (Ann. 10 A.L.R.3d 1371, § 7, subd. ). In the case of People v. Morales, 37 N.Y.2d 262, 267-269, 372 N.Y.S.2d 25, 333 N.E.2d 339 the Court of Appeals discussed the principles involved in determining whether to apply a case retroactively or prospectively, as follows:

"The concept of 'retroactivity' is not new. It has an ancient tradition, under which Judges were not deemed to 'make law' as such, but to 'pronounce the law' which, even if it had previously been enunciated erroneously, was conceived of as having always been there, waiting just to be correctly stated. (Mishkin, The High Court, the Great Writ, and the Due Process of Time and Law, 79 Harv L Rev 56, 58.) Consequently, since the 'correct' law was looked upon as having always been the same, a case decided on direct appeal always received the benefit, or detriment, of any decisional law 'pronounced' before its judgment became final. (See United States v. Schooner Peggy, 1 Cranch 103, 110 However, once a judgment had become final, it was not affected by law freshly 'pronounced' thereafter. (1 Blackstone's Commentaries 69 1 Black, Judgments §§ 245, 246.)

"Building on that historic common-law doctrine, during the 1960's the United States Supreme Court, especially in cases involving deprivations of constitutional due process rights under the Fourteenth Amendment in...