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

• Decision Date: 15 February 1983
• Citation: 447 N.E.2d 689,58 N.Y.2d 196,460 N.Y.S.2d 746
• Parties: , 447 N.E.2d 689 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.
• Court: New York Court of Appeals Court of Appeals

Page 746

460 N.Y.S.2d 746

58 N.Y.2d 196, 447 N.E.2d 689

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.

Court of Appeals of New York.

Feb. 15, 1983.

Allen E. Burns, William E. Hellerstein and Roger Brazill, New York City, for appellant.

Robert Abrams, Atty. Gen. (Betsy Broder and Peter H. Schiff, Asst. Attys. Gen., of counsel), for respondents.

OPINION OF THE COURT

JASEN, Judge.

On this appeal, we are asked to decide whether the denial of petitioner's request that his final parole revocation hearing be adjourned until such time as the criminal charges pending against him were disposed of was an abuse of discretion or deprived petitioner of his right to due process.

On July 18, 1980, petitioner was released on parole after serving approximately 6 years of a 6 1/2- to 13-year sentence for robbery in the second degree. Petitioner was arrested in Kingston, New York, on September 8, 1980 and charg with second degree assault, resisting arrest and unlawful possession of marihuana. The same day, a parole violation warrant was issued against him, charging him with violating his parole on the basis of the criminal charges brought against him and because he did not have written permission to leave New Jersey, the State which was supervising his parole.

Probable cause that petitioner had violated the terms of his parole was found to exist at a preliminary hearing held on September 23, 1980. The final parole revocation hearing began on December 16, 1980. In the interim, the Ulster County Grand Jury had referred the criminal charges to Kingston City Court for prosecution as misdemeanors.

At the final parole revocation hearing, petitioner's counsel requested an adjournment until such time as the criminal charges against his client were tried. In support of this request, he cited People ex rel. Dowdy v. Smith, 48 N.Y.2d 477, 423 N.Y.S.2d 862, 399 N.E.2d 894, arguing that if the defendant was acquitted of the charges in City Court, the Parole Board would be collaterally estopped from pursuing a parole revocation proceeding on the basis of those charges. The hearing officer, indicating that he read People ex rel. Dowdy v. Smith, supra to be limited to those cases where the defense intended to raise an affirmative defense at trial, inquired as to whether counsel so intended in this case. In response, counsel indicated that he did not know whether an affirmative defense would be raised because discovery motions were still pending in City Court, but that he believed that even if defendant offered no defense but merely put the People to their burden of proof and was acquitted, under People ex rel. Dowdy v. Smith, supra, the Parole Board would be collaterally estopped from proceeding with the parole revocation hearing. Thus, petitioner's counsel argued that an adjournment should be granted on the general proposition that it would be improper to proceed until the results of the criminal trial were known. The hearing officer denied the request, finding that defendant failed to show that he intended to raise an affirmative defense at trial, which the officer concluded was a prerequisite to People ex rel. Dowdy v. Smith, supra being applicable and because defenda failed to raise any other point that might require an adjournment.

During the hearing, testimony was taken from the complaining witness regarding the events leading up to the assault. She identified the petitioner as the person who had beaten her. Petitioner's defense consisted of attacking the witness' credibility and of petitioner testifying that he had not attacked her, but rather had run into the parking lot where the assault had occurred to hide from several other youths who had attempted to attack him. At no point during the hearing did petitioner raise any affirmative defense, challenge the admissibility of any evidence or raise any other constitutional claim.

The hearing officer dismissed the charges of possession of marihuana and being away from New Jersey without written permission, but found that petitioner had violated his parole by assaulting a woman and by resisting arrest. The charges against the defendant were subsequently dismissed on the District Attorney's motion because "the extent of time he would be required to serve in State prison [made] prosecution of the misdemeanor charge [sic] no longer in the community interest."

Petitioner then commenced this proceeding by filing a writ of habeas corpus. After a hearing, Supreme Court dismissed the petition, finding that the failure to grant the adjournment did not result in a deprivation of petitioner's right to due process.

The Appellate Division, 89 A.D.2d 770, 453 N.Y.S.2d 923, affirmed, holding that petitioner was not denied due process since he could have raised any defense or could have sought to suppress either physical evidence or the witness' identification at the hearing but did not do so. Furthermore, the Appellate Division found that there was no infringement of his Fifth Amendment protection against self incrimination because the decision as to whether or not one would testify is made separately in and for each proceeding. That court also specifically noted that People ex rel. Dowdy v. Smith (48 N.Y.2d 477, 423 N.Y.S.2d 862, 399 N.E.2d 894, supra) was limited to situations in which the defendant would raise an affirmative defense at trial. Since this petitioner had not indicated to the hearing officer that he intended raise an affirmative defense, the officer properly exercised his discretion in not granting the adjournment on that ground.

We agree with the Appellate Division that on the facts of this case petitioner failed to raise adequate claims to require an adjournment of his parole revocation hearing until such time as the criminal charges against him were decided. This is not to say that we would so conclude in all cases where an adjournment was sought. Indeed, this court has long recognized the necessity of conducting parole revocation hearings in such a manner that the parolee's due process rights are afforded the utmost protection. (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; People ex rel. Piccarillo v. New York State Bd. of Parole, 48 N.Y.2d 76, 421 N.Y.S.2d 842, 397 N.E.2d 354.) The basic decision, however, as to whether or not to grant an adjournment remains a matter for the hearing officer's discretion. (Cf. 9 NYCRR 8005.17[c][1].)

Thus, this court must decide whether or not this officer abused his discretion as a matter of law or exercised it in a manner which infringed on petitioner's due process rights. We conclude that he did not.

Petitioner raised only one argument to the hearing officer: that the adjournment was required as a matter of law because if the result of the criminal trial was a dismissal of the charges or an acquittal, the Parole Board would be estopped from pursuing the parole revocation hearing. In making this argument to the hearing officer, petitioner's counsel indicated that he felt this would be the result required under this court's holding in People ex rel. Dowdy v. Smith, supra, whether defendant presented a defense or merely stood mute.

This argument misconstrues our holding in People ex rel. Dowdy v. Smith, supra, and impermissibly expands its scope. In People ex rel. Dowdy v. Smith, supra, we held that the Parole Board would be collaterally estopped from revoking a defendant's parole on the basis of criminal charges to which he had raised a successful affirmative defense. After noting that both sides appeared to agree that it was the affirmative defense of entrapment which resulted in defendant's acquittal in that case, the court held that the doctrine of collateral estoppel would be applicab in the subsequently held parole revocation hearing despite the fact that one proceeding was punitive in nature and the other remedial if the necessary elements to apply the doctrine of collateral estoppel existed. Stating that there was no difficulty in concluding that the same parties were involved in the two proceedings, we examined whether the issue involved before the Parole Board would be the same as that previously litigated at the trial on the criminal charges. In that case, the charge was that the petitioner had violated his parole by...