People ex rel. Walker v. New York State Bd. of Parole

• Decision Date: 19 December 1983
• Citation: 469 N.Y.S.2d 780,98 A.D.2d 33
• Parties: The PEOPLE, etc., ex rel. Reginald WALKER, Appellant, v. NEW YORK STATE BOARD OF PAROLE, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 780

469 N.Y.S.2d 780

98 A.D.2d 33

The PEOPLE, etc., ex rel. Reginald WALKER, Appellant, v. NEW YORK STATE BOARD OF PAROLE, et al., Respondents.

Supreme Court, Appellate Division,

Second Department.

Dec. 19, 1983.

William E. Hellerstein and Roger Brazill, New York City (Vivian Lazerson, New York City, of counsel), for appellant.

Robert Abrams, Atty. Gen., New York City (Barbara L. Linzer, Melvyn R. Leventhal, Gerald J. Ryan and Bridget E. Farrell, Asst. Attys. Gen., New York City, of counsel; Ramona Goodman, Law Student, New York City, on brief), for respondents.

Before TITONE, J.P., and LAZER, O'CONNOR and BOYERS, JJ.

TITONE, Justice Presiding.

At issue on this appeal is the proper allocation of the fact-finding function in parole revocation proceedings. More specifically, we are called upon to determine whether a parolee, who has been declared delinquent, is entitled to a judicial evidentiary hearing in which to litigate the merits of his claim that he had not been served with statutorily required notices before an otherwise timely scheduled administrative revocation hearing is conducted. We hold that when, as here, proper service is established, prima facie, by a parole officer's affidavit, judicial intervention is not appropriate and the challenge must first be pursued in the administrative process.

Petitioner, Reginald Walker, was convicted of attempted rape in the first degree in the Supreme Court, Bronx County, and was sentenced to an indeterminate term of three to six years imprisonment. Following his release on parole, he was declared delinquent and was taken into custody on January 3, 1983, at which time he waived a preliminary hearing.

On March 28, 1983, 84 days after a preliminary hearing had been waived, petitioner appeared before a hearing officer at a rescheduled final parole revocation hearing. The hearing officer advised him of his various rights, including the right to receive a copy of the violation report, the document that specifies the charges lodged against a parolee. After petitioner claimed that he had not received the report, the hearing was adjourned upon petitioner's request for counsel and the hearing officer expressly advised him that on the adjourned date his attorney could raise all arguments concerning the adequacy of the notice.

The next day, however, petitioner commenced this habeas corpus proceeding claiming that he was denied his statutory and due process rights in that he was not served with notice of the conditions of his parole which he was alleged to have violated and the manner in which they had been violated within three days of the execution of the parole warrant (Executive Law, § 259-i, subd. 3, par. [c], cl. [iii] ) and that he did not receive a final hearing within 90 days of his waiver of the preliminary hearing (Executive Law, § 259-i, subd. 3, par [f], cl. [i] ). He argued that the March 28 adjournment was chargeable to the parole board due to its failure to serve him with a copy of the violation of parole report. ¹

Respondents alleged in their answer that petitioner was served with all necessary notices on the date that he was taken into custody and submitted an affidavit of the arresting parole officer to that effect.

Criminal Term, relying on the affidavit, dismissed the writ. On appeal, petitioner claims that the affidavit is hearsay and cannot rebut his allegation of lack of service. The Attorney-General purports to confess error and requests a remand for an evidentiary hearing. We reject the concession (see Sibron v. New York, 392 U.S. 40, 58, 88 S.Ct. 1889, 1900, 20 L.Ed.2d 917; People v. Berrios, 28 N.Y.2d 361, 366-367, 321 N.Y.S.2d 884, 270 N.E.2d 709; cf. Matter of Geneseo Cent. School [Perfetto & Whalen Constr. Co.], 53 N.Y.2d 306, 312, n. 2, 441 N.Y.S.2d 229, 423 N.E.2d 1058; Rentways, Inc. v. O'Neill Milk & Cream Co., 308 N.Y. 342, 349, 126 N.E.2d 271) and affirm.

Habeas corpus is, of course, an appropriate remedy for review of parole revocation proceedings (e.g., 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, 168, 424 N.Y.S.2d 550) and will also lie when a final hearing is not scheduled to be held within the statutory period (see State of New York ex rel. Vega v. New York State Div. of Parole, 96 A.D.2d 605, 464 N.Y.S.2d 1015; People ex rel. Herrera v. Schager, 93 A.D.2d 847, 461 N.Y.S.2d 75; People ex rel. Levy v. Dalsheim, 66 A.D.2d 827, 411 N.Y.S.2d 343, affd. 48 N.Y.2d 1019, 425 N.Y.S.2d 802, 402 N.E.2d 141). In this case, however, the final hearing was scheduled within the statutory period and the adjournment for the purpose of obtaining counsel is chargeable against the petitioner (People ex rel. Sloan v. New York State Bd. of Parole, 88 A.D.2d 666, 450 N.Y.S.2d 512; People ex rel. Miranda v. Dalsheim, 70 A.D.2d 941, 417 N.Y.S.2d 513; People ex rel. Kitt v. Dalsheim, 67 A.D.2d 934, 412 N.Y.S.2d 1017), unless proper notice of the charges has not been given (People ex rel. Andersen v. New York State Bd. of Parole, 94 A.D.2d 807, 808, 463 N.Y.S.2d 237; Matter of Lott v. Smith, 84 A.D.2d 909, 910, 446 N.Y.S.2d 665; cf. Matter of Jackson v. Hammock, 82 A.D.2d 888, 440 N.Y.S.2d 299).

A process server's affidavit of service has been held to create a prima facie case on the issue of service in civil litigation (see Smid v. Lombard, 83 A.D.2d 877, 442 N.Y.S.2d 104; Orchard Park Cent. School Dist. v. Orchard Park Teachers Assn., 50 A.D.2d 462, 468, 378 N.Y.S.2d 511, app. dsmd., 38 N.Y.2d 911, 382 N.Y.S.2d 756, 346 N.E.2d 557; Denning v. Lettenty, 48 Misc.2d 185, 186, 264 N.Y.S.2d 619 [NUNEZ, J.]; Siegel, N.Y.Practice, § 79, p. 87; but see Queensboro Leasing v. Resnick, 78 Misc.2d 919, 358 N.Y.S.2d 939) and we think the same rule should be applicable in parole revocation proceedings. Since such proceedings possess the attributes of an administrative hearing rather than a criminal trial (People ex rel. Piccarillo v. New York Bd. of Parole, 48 N.Y.2d 76, 80, 421 N.Y.S.2d 842, 397 N.E.2d 354; People ex rel. Maggio v. Casscles, 28 N.Y.2d 415, 418, 322 N.Y.S.2d 668, 271 N.E.2d 517; cf. People ex rel. Matthews v. New York State Div. of Parole, 58 N.Y.2d 196, 204, 460 N.Y.S.2d 746, 447 N.E.2d 689), a hearing officer need not follow the strict rules of evidence (People ex rel. Pena v. New York State Div. of Parole, 83 A.D.2d 887, 888, 442 N.Y.S.2d 99) ² and there is no general requirement that "the board * * * produce live witnesses to corroborate hearsay violation reports" (People ex rel. Gaskin v. Smith, 55 A.D.2d 1004, 1005, 391 N.Y.S.2d 222). Moreover, the Supreme Court has cautioned that "the process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial" (Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 2604, 33 L.Ed.2d 484; but see, People ex rel. Gambino v. Warden of City Prison of City of N.Y., 43 A.D.2d 400, 403, 352 N.Y.S.2d 200; People ex rel. McGee v. Walters, 96 A.D.2d 605, 465 N.Y.S.2d 300, mot. for lv. to app. granted, 60 N.Y.2d 556, 468 N.Y.S.2d 1025, 455 N.E.2d 1265 [1983] ).

Petitioner's reliance upon People ex rel. Herrera...