People ex rel. Menechino v. Warden, Green Haven State Prison

• Citation: 27 N.Y.2d 376,318 N.Y.S.2d 449,267 N.E.2d 238
• Parties: , 267 N.E.2d 238 The PEOPLE of the State of New York ex rel. Joseph MEMECHINO, Appellant, v. WARDEN, GREEN HAVEN STATE PRISON, Respondent.
• Decision Date: 13 January 1971
• Court: New York Court of Appeals Court of Appeals

Page 449

318 N.Y.S.2d 449

27 N.Y.2d 376, 267 N.E.2d 238

The PEOPLE of the State of New York ex rel. Joseph MEMECHINO, Appellant, v. WARDEN, GREEN HAVEN STATE PRISON, Respondent.

Court of Appeals of New York.

Jan. 13, 1971.

David Rosenberg, New York City, for appellant.

Louis J. Lefkowitz, Atty. Gen. (Hillel Hoffman and Samuel A. Hirshowitz, New York City, of counsel), for respondent.

FULD, Chief Judge.

The relator is serving a lengthy term in prison following the revocation of his earlier release on parole. He had appeared before the Board of Parole at a revocation hearing without an attorney, and upon this appeal we are called upon to decide whether parolees are constitutionally entitled, under the Federal and State Constitutions, to the assistance of counsel in parole revocation hearings.

The relator was convicted in 1947 in the former Court of General Sessions on his plea of guilty to a charge of murder in the second degree and sentenced to prison for an indeterminate term of from 20 years to life. After being imprisoned for 16 years, he was released on parole during the summer of 1963. In December of the following year, he was declared 'delinquent' and was taken into custody in March of 1965. A month later, he was brought before a 'parole court' for a revocation hearing, ¹ charged with having violated the conditions of his parole by associating 'with individuals having a criminal record' and by giving 'false and misleading information' to his parole supervisor.

The relator, not represented by a lawyer, agreed to the board's characterization of his relationship with certain ex-convicts as 'consorting' and admitted that he had falsely denied knowing them. ² These were, as the respondent notes, 'technical violations' and, although there is no intimation that the relator had committed a crime or participated in any criminal activity, the board ordered his parole revoked and barred him from being reconsidered for further parole for at least two years. Since that initial hearing, he has appeared before the board on three different occasions, also without counsel, for reconsideration of parole release. In each instance, apparently on the basis of his initial parole violation reconsideration was denied. He is not scheduled to meet with the board again until June of 1971.

Some time later, in July, 1968, the relator, asserting that he had constitutional rights both to counsel and to certain other procedural safeguards, brought an article 78 proceeding to redress their deprivation. It is enough to say that that proceeding was dismissed on the ground that it had been commenced beyond the time permitted by statute. (See Matter of Menechino v. Division of Parole, 26 N.Y.2d 837, 309 N.Y.S.2d 585, 258 N.E.2d 84, affg. 32 A.D.2d 761, 301 N.Y.S.2d 350, revg. 57 Misc.2d 865, 293 N.Y.S.2d 741). ³ In reaching that conclusion, this court noted that 'our determination (was), however, without prejudice to any other proceeding which (Menechino) may be advised to institute' (26 N.Y.2d, at p. 838, 309 N.Y.S.2d at p. 586, 258 N.E.2d at p. 85). The relator thereupon brought the present habeas corpus proceeding in Dutchess County, again claiming that he was deprived of his due process rights at the parole revocation hearing. Following Special Term's dismissal of the writ--under constraint of cases decided by the Appellate Division in the Second Department--he appealed directly to our court on constitutional grounds (CPLR 5601, subd. (b), par. 2). ⁴

The Correction Law, as it read in 1947 (see Supra, p. 450, n. 1), provided that, whenever there is 'reasonable cause to believe' that a paroled prisoner has violated his parole, the Board of Parole 'shall declare (him) to be delinquent' (Correction Law, § 218; now § 212, subd. 7). The board, the statute continued, shall give such parold violator 'an opportunity to appear personally, but not through counsel or others, before (three members of) such board * * * and explain the charges made against him. * * * and may, if it sees fit, require (him) to serve out in prison or such other institution the balance of the maximum term for which he was originally, sentenced'. It is apparent, therefore, that the board is vested with unfettered discretion in deciding whether or not a parole violation has occurred and, if it has, whether or not the parolee should be returned to prison.

The reported decisions as to whether a parolee has a right to counsel at a parole revocation hearing are divided. Although most of the courts which have passed upon the matter have held that there is no such right under the Due Process Clause of the Fifth or Fourteenth Amendment (see, e.g., Earnest v. Willingham, 10 Cir., 406 F.2d 681, 682; Rose v. Haskins, 6 Cir., 388 F.2d 91; Hyser v. Reed, 318 F.2d 225; Johnson v. Stucker, 203 Kan. 253, 453 P.2d 35, cert. den. 396 U.S. 904, 90 S.Ct. 218, 24 L.Ed.2d 180; Robinson v. Cox, 77 N.M. 55, 419 P.2d 253; State ex rel. London v. Pardon and Parole Comm., 2 Ohio St.2d 224, 208 N.E.2d 137; Beal v. Turner, 22 Utah 2d 418, 454 P.2d 624), we prefer the contrary view, expressed by a few courts, as well as by the commentators, that the right to the assistance of an attorney at the hearing is constitutionally mandated. (See People ex rel. Combs v. La Vallee, 29 A.D.2d 128, 286 N.Y.S.2d 600 (4th Dept.), app. dsmd. 22 N.Y.2d 857, 293 N.Y.S.2d 117, 239 N.E.2d 743; Commonwealth v. Tinson, 433 Pa. 328, 249 A.2d 549; Warden of Maryland Penitentiary v. Palumbo, 214 Md. 407, 135 A.2d 439; see, also, Menechino v. Oswald, 2 Cir.,430 F.2d 403, 409; Cohen, Sentencing, Probation and the Rehabilitative Ideal: The View from Mempa v. Rhay, 47 Tex.L.Rev. 1; Note, Constitutional Law; Parole Status and the Privilege Concept, 1969 Duke L.J. 139, 142; Note, Parole Revocation in the Federal System, 56 Geo.L.J. 705, 740.) ⁵

The United States Supreme Court has not had occasion to consider whether a parolee has a constitutional right to be represented by an attorney at a Parole revocation hearing but it has explicitly held that counsel must be afforded a defendant at a proceeding to Revoke probation. (See Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336; McConnell v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2.) These cases involved the Washington 'deferred sentencing' procedure under which persons convicted of crimes could be released on probation either immediately following their convictions or, as in the Mempa case itself, after serving a term of imprisonment. Observing that a proceeding to revoke such probation not only resulted in the imposition of a new penalty but that the determination was 'based on the alleged commission of offenses (i.e., acts in violation of probation) for which the accused is never tried' (Mempa v. Rhay, 389 U.S. 128, 137, 88 S.Ct. 254, 258, 19 L.Ed.2d 336, Supra), the court decided that due process required that 'a lawyer * * * be afforded * * * whether (the proceeding) be labeled a revocation of probation or a deferred sentencing.'

There are, of course, differences between Washington's deferred sentencing procedure, probation revocation and parole revocation but such differences cannot, and should not, militate against the need for a lawyer where revocation of parole results in the deprivation of liberty. As we read Mempa v. Rhay (389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336, Supra), we are persuaded--as other courts have been (see, e.g., Hewett v. North Carolina, 4 Cir., 415 F.2d 1316, 1322--1323; Ashworth v. United States, 6 Cir., 391 F.2d 245, 246)--that it may not be limited to its narrow factual content. The principle which underlies the decision in Mempa is sufficiently broad to encompass the revocation of parole as well as of probation. In both, the decision to deprive an individual of his liberty turns on factual determinations, and we would say, as did the Supreme Court in the Mempa case (389 U.S., at p. 135, 88 S.Ct. at p. 257), that 'the necessity for the aid of counsel in marshaling the facts, introducing evidence of mitigating circumstances and in general aiding and assisting the defendant to present his case * * * is apparent.'

Once the Board of Parole decides that a prisoner is to be granted parole, he is released on specific conditions (Correction Law, § 215), and he may not again be incarcerated unless the board concludes, after a hearing, that he has violated his parole in one of the respects enumerated in section 216 of the statute. The purpose of the hearing is to afford the parolee 'an opportunity to appear * * * and explain the charges made against him' (Correction Law, § 218; now § 212, subd. 7). It is, in a very real sense, an accusatory proceeding in which the outcome--liberty or imprisonment--is dependent upon the board's factual determination as to the truth of specific allegations of misconduct. We agree with the Appellate Division in Combs (29 A.D.2d, at p. 131, 286 N.Y.S.2d at p. 603, per Bastow, J.) that, '(w)hen all the legal niceties are laid aside a proceeding to revoke parole involves the right of an individual to continue at liberty or to be imprisoned. It involves a deprivation of liberty just as much as did the original criminal action and * * * falls within the due process provision of section 6 of Article I of our State constitution.' Indeed, the revocation of Menechino's parole may actually lead to imprisonment for the rest of his life. Can there be, in such a case, any reasonable doubt as to the value of counsel 'in developing and probing factual and legal situations which may determine on which side of the prison walls appellant will be residing?' (Commonwealth v. Tinson, 433 Pa. 328, 333, 249 A.2d 549, 552, Supra.)

In short, to cull from the Supreme Court's opinion in Powell v. Alabama, 287 U.S. 45, 68--69, 53 S.Ct. 55, 64, 77 L.Ed. 158, the right to be heard would be 'of little avail if it did not comprehend the right to be heard by counsel.' (See, also, Goldberg v. Kelly, 397 U.S. 254, 270, 90...