People ex rel. Spinks v. Dillon

• Decision Date: 01 June 1979
• Citation: 416 N.Y.S.2d 942,68 A.D.2d 368
• Parties: PEOPLE of the State of New York ex rel. Charles SPINKS, Appellant, v. John C. DILLON, Sheriff of Onondaga County and Edward Hammock, Chairman of the New York State Board of Parole, Respondents.
• Court: New York Supreme Court — Appellate Division

Page 942

416 N.Y.S.2d 942

68 A.D.2d 368

PEOPLE of the State of New York ex rel. Charles SPINKS, Appellant, v. John C. DILLON, Sheriff of Onondaga County and Edward Hammock, Chairman of the New York State Board of Parole, Respondents.

Supreme Court, Appellate Division, Fourth Department.

June 1, 1979.

Karl M. Rice, Syracuse, for appellant.

Robert Abrams, Atty. Gen., Albany, for respondent Hammock; Anne Meadvin, Asst. Atty. Gen., Albany, of counsel.

Before DILLON, P. J., and HANCOCK, SCHNEPP, DOERR and MOULE, JJ.

HANCOCK, Justice.

We hold that the requirement in Executive Law ( § 259-i, subd. 3, par. (f), subpar. (i)) that parole revocation hearings be held within 90 days of the probable cause determination is subject to the limitation that the parolee must be within the practical control of the parole board.

Petitioner, who was on parole from a New York sentence, was convicted of a Federal offense and sentenced to a Federal correctional facility in Danbury, Connecticut. While petitioner was in jail in Wampsville, New York awaiting transfer to the Federal facility, a parole violation detainer warrant was lodged against him based on the Federal conviction. He waived his right to a preliminary hearing and the following day was removed to the Federal facility. After he had served part of his Federal sentence, petitioner was placed in a Federal halfway house program in Syracuse, New York. He was then taken into custody by New York authorities on the pending parole violation detainer warrant. Final parole revocation proceedings were begun but before the hearing date petitioner applied for a writ of habeas corpus based upon respondent's failure to accord him a final revocation hearing within 90 days from his waiver of the preliminary hearing. The court below denied the application. We affirm.

The court in People ex rel. Walsh v. Vincent, 40 N.Y.2d 1049, 392 N.Y.S.2d 240, 360 N.E.2d 919, cited by appellant, recognized the logical and necessary requirement that before a parolee may invoke his legal right to a prompt parole revocation hearing, he must be " 'subject to the convenience and practical control of the Parole Board' " (People ex rel. Walsh v. Vincent, supra, p. 1050, 392 N.Y.S.2d p. 241, 360 N.E.2d p. 920, citing Matter of Beattie v. New York State Bd. of Parole, 39 N.Y.2d 445, 447, 384 N.Y.S.2d 397, 398, 348 N.E.2d 873, 874; see Matter of Zobrist v. Smith, 54 A.D.2d 1071, 388 N.Y.S.2d 762, app. dsmd. 42 N.Y.2d 1012, 398 N.Y.S.2d 537, 368 N.E.2d 287). In Walsh, the relator while on parole had been arrested, convicted, and incarcerated in a New York City jail. He was not given a final parole revocation hearing until after his release from the local facility. The Court held that his right to a prompt final revocation hearing had been violated and ordered him restored to parole. It found that the relator had at all times been " 'subject to the convenience and practical control of the Parole Board' " because, although incarcerated in a city jail and not a state correctional facility, he had been continuously within the state and had, while in the city jail, received a prompt preliminary parole revocation hearing.

At the time of the decision in Walsh, parole revocation proceedings were governed by Correction Law ( §§ 210 et seq.) and 7 NYCRR Parts 1920 and 1925. Correction Law ( § 212, subd. 7) provided that a final parole revocation hearing must be held "at the first available opportunity." This provision, we have seen, was interpreted by the courts as being impliedly subject to the practical limitation that the parolee must be under the control of the parole board. Subsequent to the decisions in Walsh and Beattie, the functions of the parole board were transferred by statute from the Department of Correction to the Executive Department. The new legislation (Executive Law, §§ 259 et seq.; 259-i, subd. 3, par. (f), subpar. (i); L.1977, ch. 904) included the requirement that a final parole revocation hearing be held within 90 days of the probable cause determination. Nothing in the wording of the statute or in the Legislative Findings and Purpose evinces any intention to alter the established limitation on the right to a prompt revocation hearing imposed by the decisions in Walsh and Beattie. The legislature must be assumed to have known of the existing judicial decisions when it changed the law (see McKinneys Cons.Laws of N.Y., Book I, Statutes, § 191). We hold, therefore, that the legislature did not intend in enacting the new statute to alter the settled rule that before a parolee may invoke his legal right to a prompt parole revocation hearing, he must be subject to the practical control of the parole board.

The question here then becomes whether subsequent to his waiver of the preliminary hearing petitioner was subject to the practical control of the parole board. We hold that he was not. From the day after he waived his right to a preliminary hearing until the time he was placed in a halfway house in New York, petitioner was incarcerated in an out-of-state Federal correctional facility. There was no existing statutory or administrative mechanism by which the parole board could have effected the return of a parolee incarcerated out of state for the purpose of holding a revocation hearing. In this respect the case at bar differs from the "speedy trial" cases concerning prisoners brought to New York from out-of-state Federal prisons to face pending criminal proceedings. In those cases, the New York authorities could utilize the procedure in 18 U.S.C., § 4085 to obtain the production of the prisoners. 18 U.S.C., § 4085 provides for the transfer to a penal or correctional institution within a state for the purpose of prosecution or sentencing of a prisoner who "has been indicted, informed against, or convicted of a felony" in that state. This section plainly applies to a prisoner against whom a criminal action is pending and not to a prisoner charged with a parole violation. No decisions have been found which 18 U.S.C., § 4085 has been extended to allow transfer of a prisoner for a parole hearing. Similarly, the Federal version of the Interstate Agreement on Detainers (18 U.S.C.App., § 2, art. I, Cum.Supp.1979) may only be used to effect the return of a prisoner against whom an "untried indictment, information, or complaint" is pending.

Even if section 259-i (subd. 3, par. (f), subpar. (i)) were not limited by the rule in Walsh and Beattie, we would have cause to affirm. The section includes a provision that the 90-day time limit for final parole revocation hearings may be extended "if an alleged violator, by his actions * * * precludes the prompt conduct of such proceedings." The actions of petitioner in committing a crime resulting in his incarceration in a Federal correctional facility thus placing himself beyond the reach of the New York parole authorities clearly are actions precluding the prompt conduct by the authorities of any proceedings in New York affecting his parole status.

The judgment should be affirmed.

Judgment affirmed.

DILLON, P. J., and SCHNEPP and MOULE, JJ., concur.

DOERR, J., dissents and votes to reverse the judgment in the following Opinion.

DOERR, Justice (dissenting):

The judgment of Special Term should...