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

• Decision Date: 03 April 1986
• Citation: 501 N.Y.S.2d 634,67 N.Y.2d 197,492 N.E.2d 762
• 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.
• Court: New York Court of Appeals Court of Appeals

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 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 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 denied relator's request for the issuance of subpoenas duces tecum, without prejudice to renewal before the Parole Board. On relator's appeal to the Appellate Division from both orders, that court, characterizing both orders as intermediate and not appealable in a habeas corpus proceeding, dismissed the appeals (112 A.D.2d 333, 491 N.Y.S.2d 989). We granted relator leave to appeal (66 N.Y.2d 602, --- N.Y.S.2d ----, 487 N.E.2d 910) and now modify as above set forth.

II

The purpose of habeas corpus is to test the legality of the detention of the person who is the subject of the writ (CPLR 7002[a]; People ex rel. Shapiro v. Keeper of City Prison, 290 N.Y. 393, 399, 49 N.E.2d 498). The summary and exigent nature of the proceeding is evidenced by the requirement of CPLR 7003(a) that the court "issue the writ without delay on any day," the provision of CPLR 7005 authorizing service of a writ on any day notwithstanding that service of other process on a Sunday is void (General Business Law § 11), and the direction of CPLR 7009(c) that "[t]he court shall proceed in a summary manner". Thus, in holding an order setting a child custody petition for hearing before the court not appealable, we noted in People ex rel. Duryee v. Duryee, 188 N.Y. 440, 445-446, 81 N.E. 313, that: "The writ of habeas corpus, as its history shows, is a summary proceeding to secure personal liberty. It strikes at unlawful imprisonment or restraint of the person by state or citizen, and by the most direct method known to the law learns the truth and applies the remedy. It tolerates no delay except of necessity, and is hindered by no obstacle except the limits set by the law of its creation. Hence the legislature commanded that no appeal should be taken from incidental orders made in the course of the proceeding, as that might cause delay and prolong the injustice. Even the evil of a wrong order, if not vital, was preferred to the danger of delay caused by an appeal therefrom." (See also, People ex rel. Glendening v. Glendening, 281 N.Y. 602, 22 N.E.2d 169, on further appeal after remand 284 N.Y. 598, 29 N.E.2d 926; People ex rel. Woodbury v. Hendricks, 215 N.Y. 339, 344, 109 N.E. 486.)

That the evidentiary hearing concerning legality of detention is to be before the habeas court rather than the detaining agency is likewise pellucidly clear. Thus, what CPLR 7009(c) directs the court to do in a summary manner is "to hear the evidence produced in support of and against detention and to dispose of the proceeding as justice requires" (emphasis supplied). ³ And that direction is underscored by the designation of habeas corpus as "a special proceeding" (CPLR 7001), for that brings into play the parallel provision of CPLR 410 that "[i]f triable issues of fact are raised they shall be tried forthwith and the court shall make a final determination thereon " (emphasis supplied). Indeed, a hearing at Special Term appears to have been the uniform practice prior to the Appellate Division's decision in Diamond ⁴ (see, People ex rel. Posada-Osorio v. Hammock, 58 N.Y.2d 978, 980, 460 N.Y.S.2d 921, 447 N.E.2d 1282, rearg. denied 58 N.Y.2d 1114, 462 N.Y.S.2d 1029, 449 N.E.2d 746; Matter of Vasquez v. New York State Bd. of Parole, 58 N.Y.2d 981, 982, 460 N.Y.S.2d 918, 447 N.E.2d 1279, rearg. denied 58 N.Y.2d 1114, 462 N.Y.S.2d 1029, 449 N.E.2d 746; People ex rel. Marvin v. McDonnell, 280 App.Div. 367, 113 N.Y.S.2d 585; People ex rel. Zangrillo v. Doherty, 40 Misc.2d 505, 512, 293 N.Y.S.2d 694; cf. People ex rel. Lee v. Smith, 58 A.D.2d 987, 397 N.Y.S.2d 266). The Diamond procedure is, moreover, inconsistent with our holding in People ex rel. Levy v. Dalsheim, 48 N.Y.2d 1019, 425 N.Y.S.2d 802, 402 N.E.2d 141, affirming for the reasons stated by the Appellate Division (66...