People ex rel. Matthews, by Greenberg v. New York State Div. of Parole

• Citation: 453 N.Y.S.2d 923,89 A.D.2d 770
• Parties: The PEOPLE of the State of New York ex rel. Maurice MATTHEWS, By Richard GREENBERG, Appellant, v. NEW YORK STATE DIVISION OF PAROLE et al., Respondents.
• Decision Date: 29 July 1982
• Court: New York Supreme Court — Appellate Division

Page 923

453 N.Y.S.2d 923

89 A.D.2d 770

The PEOPLE of the State of New York ex rel. Maurice MATTHEWS, By Richard GREENBERG, Appellant, v. NEW YORK STATE DIVISION OF PAROLE et al., Respondents.

Supreme Court, Appellate Division,

Third Department.

July 29, 1982.

Richard Greenberg, New York City, for appellant.

Robert Abrams, Atty. Gen. (Betsy Broder, Asst. Atty. Gen., of counsel), for respondents.

Before SWEENEY, J. P., and KANE, CASEY, WEISS and LEVINE, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the Supreme Court at Special Term, entered April 16, 1982 in Ulster County, which dismissed a writ of habeas corpus after a hearing.

Released on parole on July 18, 1980, petitioner was arrested and charged with assault and resisting arrest on September 8, 1980. On the same date, a parole violation warrant was lodged against him, also charging him with assault and resisting arrest, plus two other violations which were later dismissed. Following a final parole revocation hearing, the parole board sustained the violations of assault and resisting arrest and ordered petitioner to serve three years before again being considered for parole. After this decision, the criminal charges pending against petitioner were dismissed. The parole board's decision was subsequently affirmed on administrative appeal. Thereafter a writ of habeas corpus was brought on behalf of petitioner, claiming denial of due process and an illegal three-year time assessment against him. Following a hearing, Special Term dismissed the writ, and petitioner has appealed.

Petitioners' claim of denial of due process is based on the parole revocation hearing officer's refusal to grant him an adjournment until the criminal charges pending against him were decided. This refusal, however, did not violate any of petitioner's constitutional rights. There was no violation of his Fifth Amendment right not to testify against himself, since a criminal action and a parole revocation hearing involving the same facts are distinct legal proceedings, each requiring a separate decision as to whether to testify or to remain silent (Matter of Fiacco v. Carey, 80 A.D.2d 673, 674, 436 N.Y.S.2d 384). Nor was an adjournment necessary until after the criminal trial in order for petitioner to be able to raise defenses available to him or to seek to suppress evidence or raise any objections to identification procedures. He could have raised any available defenses at the parole revocation hearing (Executive Law, § 259-i, subd. 3, par. cl. People ex rel. Piccarillo v. New York State Bd. of Parole, 48 N.Y.2d 76, 79, n. 2, 421 N.Y.S.2d 842, 397 N.E.2d 354). At the parole revocation hearing, petitioner neither sought to suppress any evidence nor in any way challenged the victim's lineup identification. He did not even cross-examine complainant on her identification. Furthermore, petitioner incorrectly claims that People ex rel. Dowdy v. Smith, 48 N.Y.2d 477, 423 N.Y.S.2d 862, 399 N.E.2d 894 holds that an acquittal on any ground in a criminal action collaterally estops the board of parole from revoking parole on the basis of the same transactions. Dowdy actually holds only that an acquittal based on entrapment (and presumably other affirmative defenses) in a criminal action collaterally estops a parole revocation arising from the same transaction, on the basis that a defendant has a burden of proof "of a significantly lesser quantum" (id. at 484, 423 N.Y.S.2d 862, 399 N.E.2d 894) on a parole revocation than when establishing the same facts for an affirmative defense in a criminal proceeding. An acquittal on any other ground than an affirmative defense in...