People ex rel. McKay v. Sheriff of County of Rensselaer

• Decision Date: 06 July 1989
• Citation: 152 A.D.2d 786,543 N.Y.S.2d 567
• Parties: The PEOPLE of the State of New York ex rel. Mark B. McKAY, Respondent, v. SHERIFF OF the COUNTY OF RENSSELAER et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 567

543 N.Y.S.2d 567

152 A.D.2d 786

The PEOPLE of the State of New York ex rel. Mark B. McKAY, Respondent, v. SHERIFF OF the COUNTY OF RENSSELAER et al., Appellants.

Supreme Court, Appellate Division,

Third Department.

July 6, 1989.

Robert Abrams, Atty. Gen. (Lisa Joy Robertson of counsel), Albany, for appellants.

Richard V.B. Tice, Albany, for respondent.

Before MAHONEY, P.J., and KANE, YESAWICH, LEVINE and MERCURE, JJ.

KANE, Justice.

Appeal from a judgment of the County Court of Rensselaer County (Dwyer, Jr., J.), entered March 24, 1988, which sustained a writ of habeas corpus, in a proceeding pursuant to CPLR article 70, and discharged petitioner.

On October 28, 1987, petitioner was served with a notice of parole violation and a warrant for his retaking. A preliminary parole revocation hearing was originally scheduled for November 6, 1987; however, it was adjourned until November 9, 1987. Petitioner refused to attend the rescheduled hearing and signed a refusal form entitled "Undelivered Defendant". The hearing was conducted in petitioner's absence and the Hearing Officer determined that there was probable cause that petitioner violated his parole and, therefore, scheduled a final revocation hearing. The record is unclear as to when the final hearing was actually held. However, on or about February 22, 1988, petitioner commenced this habeas corpus proceeding seeking his release. County Court sustained the writ without opinion and respondents have appealed.

We reverse. Initially, we reject petitioner's claim that the Hearing Officer's decision to proceed with the preliminary hearing in his absence was based on inadmissible hearsay. An intentional refusal to attend a preliminary revocation hearing establishes the waiver of an alleged violator's right to be present and permits the hearing to proceed without him (see, Matter of White v. New York State Div. of Parole, 60 N.Y.2d 920, 922, 470 N.Y.S.2d 581). It is true that a waiver of this right must be knowingly and intelligently made (see, id.) and the decision to proceed in absentia may not be based on hearsay information (see, People ex rel. Griffin v. Walters, 83 A.D.2d 618, 441 N.Y.S.2d 995; People ex rel. Richman v. Warden, Bronx House of Detention, 122 Misc.2d 957, 958, 472 N.Y.S.2d 291). Here, a parole officer did offer hearsay testimony concerning petitioner's refusal to attend. The Hearing Officer, however, was also given the "Undelivered Defendant" form, signed by petitioner, which acknowledged his refusal to attend. He signed without setting forth his reasons for refusal and registered no grievances regarding his refusal. Additionally, the Hearing Officer specifically based his decision to proceed without petitioner on this signed form. We find nothing improper in the Hearing Officer's reliance on this form and, in our view, petitioner effected a knowing and intelligent waiver of his right to appear.

We also disagree with petitioner's assertion that the three-day delay in the preliminary hearing violated his rights under Executive Law § 259-i(3)(c)(iii) and 9 NYCRR 8005.3(a). Executive Law § 259-i(3)(c)(iii) mandates that within three days of the execution of a warrant the alleged violator be given notice of the preliminary hearing date. Similarly, under 9 NYCRR 8005.3(a), a...