People ex rel. Ochs v. LaVallee

• Decision Date: 25 November 1969
• Parties: The PEOPLE of the State of New York ex rel., George W. OCHS, Appellant, v. J. E. LaVALLEE, as Warden of Clinton Prison, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 982

307 N.Y.S.2d 982

33 A.D.2d 80

The PEOPLE of the State of New York ex rel., George W. OCHS, Appellant, v. J. E. LaVALLEE, as Warden of Clinton Prison, et al., Respondents.

Supreme Court, Appellate Division, Third Department.

Nov. 25 ,1969.

Joseph I. Stone, New York City, for appellant.

Louis J. Lefkowitz, Atty. Gen. (Ruth Kessler Toch and Calvin M. Berger, Albany, of counsel) for respondents.

Before HERLIHY, P.J., and REYNOLDS, STALEY, GREENBLOTT and COOKE, JJ.

HERLIHY, Presiding Justice.

The appellant's application for a writ of habeas corpus was denied without a hearing.

Appellant Ochs was convicted of larceny and rape and received concurrent indeterminate sentences of 5 to 10 years in State prison which he began serving on September 23, 1961. He was paroled in October, 1965 and remained at liberty until arrested on a federal charge the following June. Pursuant to a parole detainer warrant, appellant was returned to prison in New York State upon the dismissal of the federal charge by a District Court in October, 1966. Subsequently, the appellant appeared at a parole revocation hearing; demanded the assistance of retained counsel, but permission was denied; asserted that he had not violated parole, but was remanded to prison. Thereafter he petitioned for a writ of habeas corpus upon the ground that refusal to permit representation by retained counsel was a deprivation of his constitutional rights.

Special Term determined that he was entitled to counsel and granted the appellant's application to the extent of ordering a new hearing with such representation. A transcript of that hearing was made, but it is not part of the present record because the Board refused to provide it. However, it is not disputed that the appellant's counsel requested an opportunity to examine or cross-examine witnesses providing proof that the appellant had violated his parole; to call witnesses and make inquiry on appellant's behalf including, of course, inspection of any exhibits relied upon by the Board; and that all of these requests were denied with the appellant again being remanded to prison.

Appellant again petitioned for habeas corpus relief alleging that the rehearing held by the Board was inadequate to allow effective counsel and therefore failed to comply with the order directing such rehearing. Upon this petition, Special Term reconsidered its prior determination that appellant was entitled to be represented by counsel and upon concluding that the appellant was not entitled to such representation dismissed the petition and the present appeal ensued.

The procedure to be followed whenever there is a reasonable cause to believe that a prisoner has violated his parole is specified in section 218 of the Correction Law. Following the apprehension of an alleged parole violator, this statute provides in part as follows: 'The board of parole shall, as soon as practicable, give such parole violator an opportunity to appear personally, But not through counsel or others, before three members of such board of parole and Explain the charges made against him. * * * The board of parole shall within a reasonable time Act upon such charges, and may, if it sees fit, require such prisoner to serve out in prison or such other institution the balance of the maximum term for which he was originally sentenced * * *.' (emphasis added)

The above quoted statute denies representation to the appellant and limits his right on an appearance merely to an explanation, it appearing that the Board need not present any evidence to the parolee as to the alleged violation of parole.

The issue upon this appeal must be whether or not the provisions of section 218 are constitutional since it appears that the Board has acted in accordance with this statute. (cf. Matter of Hines v. State Board of Parole, 293 N.Y. 254, 56 N.E.2d 572.)

In the case of People ex rel. Combs v. LaVallee, 29 A.D.2d 128, 286 N.Y.S.2d 600, app. dsmd. 22 N.Y.2d 857, 293 N.Y.S.2d 117, 239 N.E.2d 743, the Fourth Department held that a parolee is entitled to representation by counsel upon revocation hearings. That case may not be directly in point since the statute at that time referred to such a hearing as being held before a 'parole court.' In the case of Matter of Menechino v. Division of Parole, N.Y.C., 32 A.D.2d 761, 762, 301 N.Y.S.2d 350, 351, the First Department has determined that an alleged parole violator possesses 'no general constitutional right to representation by counsel at the parole revocation hearing before the Board of Parole.' (Accord, People ex rel. Smith v. Deegan, 32 A.D.2d...