People ex rel. McGee v. Walters
| Citation | 465 N.E.2d 342,476 N.Y.S.2d 803,62 N.Y.2d 317 |
| Parties | , 465 N.E.2d 342 The PEOPLE of the State of New York ex rel. Eddie McGEE, Respondent, v. Wilson E.J. WALTERS, as Superintendent of the Ossining Correctional Facility, et al., Appellants. |
| Decision Date | 12 June 1984 |
| Court | New York Court of Appeals |
Generally, a parolee has due process and statutory rights to confront adverse witnesses whose statements are offered at a parole revocation hearing. Although these rights embrace a strong preference for face-to-face confrontation and cross-examination, a hearing examiner may, nevertheless, upon a specific finding of good cause, permit the introduction of adverse hearsay statements without affording the parolee an opportunity to confront their declarant. Any determination that dispenses with the need for confrontation requires consideration of the rights favored status, the nature of the evidence at issue, the potential utility of cross-examination in the fact-finding process, and the State's burden in being required to produce the declarant. In the present matter, no reason was proffered that would, in itself, constitute good cause to dispense with relator's right to confront his parole officer, nor did the hearing examiner engage in this balancing process or make a specific finding of good cause. Therefore, permitting introduction of a parole violation report, under these circumstances, without granting relator an opportunity to cross-examine its author improperly deprived relator of his right to confront adverse witnesses.
Relator's parole was revoked on the basis of his failure to report to his parole officer, as required under the terms of his parole, on July 9, 1980 and on all subsequent dates up to December 3, 1980, the day on which a violation of parole report issued. The report was prepared by relator's parole officer, but that officer left the employ of the Division of Parole prior to the holding of the parole revocation hearing. The report was introduced and the foundation for it was laid by relator's then current parole officer, who had no personal knowledge of the matters reported. The hearing officer permitted the report to be admitted, under the business records exception to the hearsay rule. This report formed the sole basis of the administrative determination that relator's parole should be revoked.
In this proceeding, Supreme Court granted a writ of habeas corpus, holding that the parole violation report was improperly admitted as a business record. The court also found that relator's due process right was violated because he was accorded no opportunity to cross-examine the officer who prepared the report and who possessed personal knowledge of the alleged violations. The Appellate Division, 96 A.D.2d 605, 465 N.Y.S.2d 300, affirmed on the ground that the report was improperly admitted as a business record.
The courts below erred in holding that the parole violation report was inadmissible as a business record. They reasoned that the report was not made within a reasonable time of the acts recorded: relator first failed to appear before his parole officer in July, 1980 and the report was not prepared until December, 1980. Under CPLR 4518, a document may be admitted as a business record, if it is established that "it was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter." At issue on this point is only whether the report was made "within a reasonable time" after the alleged failure of relator to appear before his parole officer.
Under the terms of his parole, relator was to report to his parole officer every two weeks. The instant report alleged that relator had failed to report at every required time after and including July 9, 1980. Thus, there being a continuing violation of the terms of parole up to the time that the report was prepared, there was substantial evidence in the record to support a conclusion that the report was made within a reasonable time of the occurrence...
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