People ex rel. VanFossen v. Dillon

• Decision Date: 24 January 1980
• Citation: 424 N.Y.S.2d 550,72 A.D.2d 166
• Parties: PEOPLE of the State of New York ex rel. Glenn E. VanFOSSEN, Appellant, v. John C. DILLON, Sheriff of Onondaga County, Edward Hammock, Chairman of the New York State Board of Parole, Respondents.
• Court: New York Supreme Court — Appellate Division

Page 550

424 N.Y.S.2d 550

72 A.D.2d 166

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

Supreme Court, Appellate Division, Fourth Department.

Jan. 24, 1980.

Syracuse University Law Clinic, Syracuse, for appellant; Karl M. Rice, Syracuse, of counsel.

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

Before HANCOCK, J. P., and SCHNEPP, CALLAHAN, DOERR and WITMER, JJ.

CALLAHAN, Justice.

Petitioner was conditionally released from prison in April, 1978 after serving three years of an indeterminate sentence having a minimum of two and one half years and a maximum of five years. One of the conditions of petitioner's conditional release on parole was that he "avoid the excessive use of alcoholic beverages" and, if so directed by his Parole Board or his Parole Officer, he would "abstain completely from the use of alcoholic beverages". Thereafter, on or about October, 1978, petitioner was found delinquent for having violated this condition of his release on parole, but the delinquency was cancelled by a decision of the Parole Board, dated November 16, 1978, which restored petitioner to parole supervision on a "last chance basis". Pursuant to this decision, petitioner signed a special conditional release agreement which provided an acknowledgment that petitioner's Parole Officer had imposed upon him, as a condition of his parole, "a prohibition against the use of alcoholic beverages" and that such use on petitioner's part would be considered "a violation of parole". On March 30, 1979, petitioner was arrested on a parole violation detainer warrant on which he is presently being held. The notice of violation contained three charges, including a charge that on March 29, 1979, petitioner failed to abstain completely from the use of alcoholic beverages as directed by the Parole Board on November 16, 1978.

A preliminary violation hearing was held on April 9, 1979 wherein petitioner was represented by counsel. The hearing officer took testimony from two parole officers who testified that they observed petitioner drinking alcohol and beer in a tavern on March 29, 1979. The petitioner called three witnesses who testified that they were with petitioner on that evening and that he was not drinking anything other than ginger ale. Although the testimony as to whether petitioner was drinking alcohol on the evening in question was in conflict, the hearing officer ruled that based upon the credible testimony of the two parole officers, there was probable cause established with respect to charge number one. The hearing officer made no decision with regard to the other charges but ruled that this did not preclude consideration of all three charges at a final parole revocation hearing.

Prior to the scheduling of a final parole revocation hearing, petitioner, on April 17, 1979, instituted this habeas corpus proceeding, claiming that he had been denied his constitutional rights and due process of law at the preliminary hearing because (1) the parole officers had continued interrogating him following his arrest after he informed them that he wanted an attorney present and did not want to talk to them; (2) that he requested but was refused a breathalizer test for alcohol following his arrest; and (3) he was limited as to the scope of his cross-examination of witnesses presented against him at the preliminary hearing.

Special Term denied petitioner's application for a writ of habeas corpus, ruling that the writ was premature inasmuch as petitioner had failed to exhaust his administrative remedies as provided under Section 259-i of the Executive Law. The court further denied petitioner's application for restoration to his former parole supervision status but ruled that petitioner's final revocation hearing should be expedited and held as soon as is reasonably possible. It is from this order that petitioner appeals.

It is established that habeas corpus is a proper remedy for review of parole revocation proceedings (People ex rel. Menechino v. Warden, Greenhaven State Prison, 27 N.Y.2d 376, 318 N.Y.S.2d 449, 267 N.E.2d 238; People ex rel. Newcomb v. Metz, 64 A.D.2d 219, 409 N.Y.S.2d...