People ex rel. Robertson v. New York State Div. of Parole

CourtNew York Court of Appeals
Writing for the CourtMEYER; WACHTLER
Citation501 N.Y.S.2d 634,67 N.Y.2d 197,492 N.E.2d 762
Decision Date03 April 1986
Parties, 492 N.E.2d 762 The PEOPLE of the State of New York ex rel. Reginald ROBERTSON, Appellant, v. NEW YORK STATE DIVISION OF PAROLE et al., Respondents.

Page 634

501 N.Y.S.2d 634
67 N.Y.2d 197, 492 N.E.2d 762
The PEOPLE of the State of New York ex rel. Reginald
ROBERTSON, Appellant,
v.
NEW YORK STATE DIVISION OF PAROLE et al., Respondents.
Court of Appeals of New York.
April 3, 1986.

Victor Knapp, Forest Hills, for appellant.

Robert Abrams, Atty. Gen. (Charles C. Davis, Jr. and Robert Hermann, New York City, of counsel), for respondents.

OPINION OF THE COURT

MEYER, Judge.

Issues of fact in a habeas corpus proceeding on which depend the legality of

Page 635

the continued detention of an alleged parole violator are to be tried by the court issuing the writ, not by the Parole Board. The effect of an order transferring such issues to the Parole Board for hearing is to terminate the habeas corpus proceeding. That order was, therefore, final and appealable to the Appellate Division, but a second order entered in the proceeding denying relator's application for the issuance of subpoenas duces tecum was intermediate and not appealable. The order of the Appellate Division dismissing relator's appeal from the transfer order (treated as an order of affirmance for the purposes of this court's jurisdiction) should, therefore, be reversed by vacating the dismissal and remitting the matter to Supreme Court for trial forthwith of the issues of fact. The appeal, insofar as is from so much of the nonfinal order of the Appellate Division, should be dismissed. 1
I

Relator, Reginald Robertson, was paroled from State prison in October 1977, after having served over five years of a maximum 20-year sentence for manslaughter in the first degree. On January 9, 1981, while on parole, he was arrested and the following day was arraigned on a felony complaint charging two counts each of reckless endangerment in the first degree, criminal possession of a weapon in the second degree and menacing. Relator promptly notified the Division of Parole of his arrest. He was indicted on February 23, 1981 on the weapons charges only. In March 1981, he served a notice of claim on the City of New York as a predicate to a civil action against it and the arresting police officers.

On May 4, 1981, the Division issued a parole violation warrant based upon relator's felony arrest and subsequent indictment and relator was arrested and incarcerated the following day. He immediately waived his right under Executive Law § 259-i(3)(c)(i) to a preliminary probable cause hearing. On March 30, 1983, a jury acquitted relator of the weapons charges. However, he remains incarcerated under the warrant to this day.

In January 1984, relator, pro se, by verified petition, sought the issuance from Supreme Court at Special Term, Queens County, of a writ of habeas corpus. Although the thrust of the petition is that the four-month delay between relator's felony arrest and the issuance of the warrant prejudiced relator and deprived him of procedural due process (an argument since abandoned), the petition also challenges the legality of his detention on a number of other grounds: that the warrant was issued in bad faith in retribution for his civil suit; that his waiver of a preliminary hearing was involuntary because based upon a parole officer's false statement that relator's then attorney had given instructions that relator should do so; that the final revocation hearing required by Executive Law § 259-i(3)(f)(i) had not been held although more than 90 days had passed since his waiver of a preliminary hearing. The Division's answering papers raised issues of fact, and relator, having meanwhile obtained the representation of the attorney who represents him on this appeal, requested a fact-finding hearing.

A different attorney was, however, appointed to represent relator at a final parole revocation hearing. Because 33 months had passed since relator's waiver of a preliminary hearing without a final revocation hearing, that attorney obtained issuance of a second habeas corpus writ. The petition on which the writ was based was supported by Division of Parole documents indicating that hearings had been scheduled but adjourned at the Division's request and alleged that at least 199 days of delay were chargeable to the Division. The Division's response was that relator's then attorney had requested by letter dated May 21, 1981 that the final hearing be postponed until the felony charges had been tried and that the adjournments after

Page 636

relator was acquitted on those charges were at his request.

The two writs were consolidated and the Criminal Term Justice before whom the proceeding came on for hearing, noting the existence of fact issues, set the matter down for further Criminal Term hearing to determine whether relator was being illegally detained. Within a few days after that order, however, the Appellate Division decided People ex rel. Diamond v. Flood, 100 A.D.2d 604, 605, 473 N.Y.S.2d 558, in which it remitted to the Parole Board a prompt hearing question and noted "that, in the future, parolees will not be permitted to obtain judicial review of claims of a denial of a prompt hearing unless the matter has been raised in the administrative process". On the Division's motion for reconsideration of the order setting the proceeding for hearing at Criminal Term, that order was modified, on the basis of the Diamond holding, to transfer the matter to the Parole Board for a hearing to be held within 30 days (124 Misc.2d 61, 475 N.Y.S.2d 754). 2 In a separate order, Criminal Term...

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26 practice notes
  • Barbour v. People
    • United States
    • United States State Supreme Court (New York)
    • November 18, 1994
    ...and not an administrative body (id. at 459, 506 N.Y.S.2d 761, citing, People ex rel. Robertson v. New York State Div. of Page 895 Parole, 67 N.Y.2d 197, 501 N.Y.S.2d 634, 492 N.E.2d 762). 1 The court thus viewed this proceeding not as part of the parole hearing, but as a separate proceeding......
  • People ex rel. James v. N. Leasing Sys., Inc., 450460/2016
    • United States
    • United States State Supreme Court (New York)
    • May 29, 2020
    ...Pharms., Inc.) , 10 A.D.3d 331, 334, 781 N.Y.S.2d 95 (1st Dep't 2004). See People ex rel. Robertson v. New York State Div. of Parole , 67 N.Y.2d 197, 202, 501 N.Y.S.2d 634, 492 N.E.2d 762 (1986). The Northern Leasing respondents maintain that their verification telephone calls and "welcome ......
  • People v. Munsey
    • United States
    • New York Supreme Court Appellate Division
    • March 19, 2014
    ...determine whether the patient was being unlawfully detained ( seeCPLR 7002[a]; People ex rel. Robertson v. New York State Div. of Parole, 67 N.Y.2d 197, 200, 501 N.Y.S.2d 634, 492 N.E.2d 762). Therefore, in order to determine the cause and legality of the patient's detention, the Supreme Co......
  • Uhing on Behalf of Jones v. Uhing, No. S-91-743
    • United States
    • Supreme Court of Nebraska
    • August 28, 1992
    ...§ 9; Neb. Const. art. I, § 8; In re Application of Tail, Tail v. Olson, 144 Neb. 820, 14 N.W.2d 840 (1944); Robertson v. Div. of Parole, 67 N.Y.2d 197, [241 Neb. 370] 492 N.E.2d 762, 501 N.Y.S.2d 634 A habeas corpus proceeding is appropriate to test the legality of custody and best interest......
  • Request a trial to view additional results
24 cases
  • Barbour v. People
    • United States
    • United States State Supreme Court (New York)
    • November 18, 1994
    ...and not an administrative body (id. at 459, 506 N.Y.S.2d 761, citing, People ex rel. Robertson v. New York State Div. of Page 895 Parole, 67 N.Y.2d 197, 501 N.Y.S.2d 634, 492 N.E.2d 762). 1 The court thus viewed this proceeding not as part of the parole hearing, but as a separate proceeding......
  • People ex rel. James v. N. Leasing Sys., Inc., 450460/2016
    • United States
    • United States State Supreme Court (New York)
    • May 29, 2020
    ...Pharms., Inc.) , 10 A.D.3d 331, 334, 781 N.Y.S.2d 95 (1st Dep't 2004). See People ex rel. Robertson v. New York State Div. of Parole , 67 N.Y.2d 197, 202, 501 N.Y.S.2d 634, 492 N.E.2d 762 (1986). The Northern Leasing respondents maintain that their verification telephone calls and "welcome ......
  • People v. Munsey
    • United States
    • New York Supreme Court Appellate Division
    • March 19, 2014
    ...determine whether the patient was being unlawfully detained ( seeCPLR 7002[a]; People ex rel. Robertson v. New York State Div. of Parole, 67 N.Y.2d 197, 200, 501 N.Y.S.2d 634, 492 N.E.2d 762). Therefore, in order to determine the cause and legality of the patient's detention, the Supreme Co......
  • Uhing on Behalf of Jones v. Uhing, No. S-91-743
    • United States
    • Supreme Court of Nebraska
    • August 28, 1992
    ...§ 9; Neb. Const. art. I, § 8; In re Application of Tail, Tail v. Olson, 144 Neb. 820, 14 N.W.2d 840 (1944); Robertson v. Div. of Parole, 67 N.Y.2d 197, [241 Neb. 370] 492 N.E.2d 762, 501 N.Y.S.2d 634 A habeas corpus proceeding is appropriate to test the legality of custody and best interest......
  • Request a trial to view additional results

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