People ex rel. Rosado v. James

• Decision Date: 10 November 1987
• Citation: 134 A.D.2d 943,521 N.Y.S.2d 948
• Parties: PEOPLE of the State of New York ex rel. Rafael ROSADO, Appellant, v. Charles JAMES, Superintendent, Collins Correctional Facility, and Ramon J. Rodriguez, Chairman, NYS Division of Parole, Respondents.
• Court: New York Supreme Court — Appellate Division

Page 948

521 N.Y.S.2d 948

134 A.D.2d 943

PEOPLE of the State of New York ex rel. Rafael ROSADO, Appellant, v. Charles JAMES, Superintendent, Collins Correctional

Facility, and Ramon J. Rodriguez, Chairman, NYS

Division of Parole, Respondents.

Supreme Court, Appellate Division,

Fourth Department.

Nov. 10, 1987.

Robert Druar, Buffalo, for appellant.

Robert Abrams by Gail Mitchell, Buffalo, for respondents.

Before DILLON, P.J., and CALLAHAN, DOERR, BOOMER and DAVIS, JJ.

MEMORANDUM:

Petitioner was released on parole from prison on January 21, 1986 after serving approximately two and one-half years of an indeterminate sentence having a minimum of two years and a maximum of four years imposed upon his conviction of burglary in the third degree. Following his release on parole, he was declared delinquent and was taken into custody on March 14, 1986.

A preliminary parole revocation hearing was held on March 28, 1986 at which time petitioner challenged the adequacy and timeliness of his receipt of the notice of the specified charges. The parole officer testified that petitioner was falling asleep constantly and was "out of it" at the time of his arrest on the parole violation detainer warrant. Petitioner signed all the necessary documents, the parole officer then placed the documents in a manila envelope and put the envelope in petitioner's jacket pocket. Petitioner failed to explain his less than fully conscious state at the preliminary hearing. The hearing officer found that petitioner was given written notice of the time, place and purpose of the hearing and of the specified charges, in compliance with Executive Law § 259-i(3)(c)(iii) and in accordance with petitioner's due process rights. He then found "probable cause" to sustain charge # 1 that petitioner failed to report. A final parole revocation hearing was held before a hearing officer on May 27, 1986 and his recommendation was affirmed by the parole board, sustaining the charge that petitioner failed to report.

Petitioner commenced this habeas corpus proceeding. It is well established that habeas corpus is a proper remedy for review of parole revocation proceedings (People ex rel. Menechino v. Warden, Green Haven State Prison, 27 N.Y.2d 376, 318 N.Y.S.2d 449, 267 N.E.2d 238; People ex rel. Van Fossen v. Dillon, 72 A.D.2d 166, 424 N.Y.S.2d 550). Its purpose is to test the legality of the detention of the person who is the subject of the writ and it is a summary proceeding to secure personal liberty (Robertson v. Div. of Parole, 67 N.Y.2d 197, 201, 501 N.Y.S.2d 634, 492 N.E.2d 762).

The issue of whether ...