People ex rel. South v. Hammock

• Citation: 80 A.D.2d 947,438 N.Y.S.2d 34
• Parties: The PEOPLE of the State of New York ex rel. Jack SOUTH, Appellant, v. Edward HAMMOCK, as Chairman of the New York State Board of Parole, Respondent.
• Decision Date: 12 March 1981
• Court: New York Supreme Court Appellate Division

Page 34

438 N.Y.S.2d 34

80 A.D.2d 947

The PEOPLE of the State of New York ex rel. Jack SOUTH, Appellant, v. Edward HAMMOCK, as Chairman of the New York State Board of Parole, Respondent.

Supreme Court, Appellate Division,

Third Department.

March 12, 1981.

John L. Shea, Albany, for appellant.

Robert Abrams, Atty. Gen. (Frederick R. Walsh, Asst. Atty. Gen., of counsel), for respondent.

Before MAHONEY, P. J., and MAIN, MIKOLL, YESAWICH and KANE, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the Supreme Court at Special Term, entered May 7, 1980 in Albany County, which denied a writ of habeas corpus.

In 1973, petitioner was convicted of armed robbery and sentenced to 15 years in the New York State Correctional System. On October 14, 1976, he was paroled from the Greenhaven Correctional Facility. While on parole he committed various crimes and ultimately pled guilty in United States Federal Court for the Eastern District of New York to two charges of bank robbery and one charge of escape from a correctional facility. As a result, the New York State Division of Parole lodged a parole detainer warrant with the Federal institution where the petitioner was incarcerated. On August 30, 1978, petitioner was given a final parole revocation hearing wherein petitioner pled guilty to 10 of 11 parole violations. A final decision revoking petitioner's parole was rendered on October 10, 1978. Respondent alleges that a copy of petitioner's parole revocation decision notice was mailed to petitioner on March 22, 1979. However, petitioner claims he never received a copy of the decision until May 9, 1979.

Petitioner was permitted to file a late appeal to the Division of Parole Appeals Unit. The Appeals Unit affirmed the petitioner's revocation of parole on December 20, 1979.

Thereafter, petitioner sought a writ of habeas corpus in Supreme Court, Albany County, contending that the Parole Board's eight-month delay in notifying him of its parole revocation decision denied him due process of law. Special Term denied the petition without reaching the merits holding that a writ of habeas corpus could not be utilized by petitioner while he was legally detained in a Federal penitentiary in Pennsylvania. This appeal ensued.

Petitioner contends that while the writ of habeas corpus may have been an improper device for challenging the failure of the Parole Board to give him notice of its decision, Special Term should have treated his motion papers as an article 78 proceeding and thereby reached the merits of his contention that the eight-month delay was statutorily impermissible and should result in his return to probation status in this State. We agree.

It is well established "that the remedy of habeas corpus is available only to one who is entitled to immediate release from the custody he is challenging" (People ex rel. Malinowski v. Casscles, 53 A.D.2d 954, 385 N.Y.S.2d 640 mot. for lv. to app. den. 40 N.Y.2d 809, 392 N.Y.S.2d 1027, 360 N.E.2d 1109). In the instant case, petitioner is not incarcerated within the New York State Correctional System, but is serving a sentence imposed upon him by Federal authorities. Thus, we are without authority to grant a writ of habeas corpus. However, where, as here, an incarcerated petitioner does not seek release from confinement, but, rather, a determination that he is entitled to parole status because of the failure of the Parole Board to carry out a statutory mandate, ^* the wrongfully brought writ may be converted to an article 78 proceeding to decide the validity of such contention. (CPLR 103, subd. cf. People ex rel. Miranda v. Henderson, 54 A.D.2d 611, 387 N.Y.S.2d 329.) In our view, Special Term erred in not perceiving that petitioner was seeking to review an alleged error affecting his future status in this State after release from Federal imprisonment, rather than an immediate release. Next, Special Term's denial of the writ cannot be justified by respondent's contention that conversion to an article 78 proceeding would be useless since petitioner cannot demonstrate prejudice since his incarceration will continue despite any ruling favorable to him. As the Court of Appeals recently stated in People ex rel. Gonzales v. Dalsheim, 52 N.Y.2d 9, 14, n. 2, 436 N.Y.S.2d 199, 417 N.E.2d 493 [1980]:

It is implicit in these decisions that we have not subscribed to the proposition that the parolee has waived or forfeited his right to prompt parole revocation hearings * * * (cf. Executive Law, § 259-i, subd. par. subpar. or that to establish his right to relief following denial of prompt hearings he must demonstrate that he has suffered actual prejudice.

Similarly, we conclude that lack of demonstrable prejudice does not foreclose review of a prisoner's claim of error following denial of prompt notification of the final revocation hearing result. Whether the Board notified petitioner of its decision "as soon as practicable" (9 NYCRR 8005.20is a factual issue which must be tried (CPLR 7804, subd. [h]).

Judgment reversed, on the law, and matter remitted to Special Term for further proceedings not inconsistent herewith.

MAHONEY, P. J., and MAIN, MIKOLL and YESAWICH, JJ., concur.

KANE, J., dissents and votes to affirm in the following memorandum.

KANE, Justice, (dissenting).

The judgment of Special Term should be affirmed. Petitioner's sole complaint is that he was not informed of the decision to revoke his parole "as soon as practicable" (9 NYCRR 8005.20 Even if this proceeding were treated as one for article 78 review and ...