People ex rel. Wallace v. State

• Decision Date: 28 February 1979
• Citation: 67 A.D.2d 1093,415 N.Y.S.2d 157
• Parties: PEOPLE of the State of New York ex rel. John WALLACE, Respondent, v. The STATE of New York and William Lombard, Monroe County Sheriff, Appellants.
• Court: New York Supreme Court — Appellate Division

Page 157

415 N.Y.S.2d 157

67 A.D.2d 1093

PEOPLE of the State of New York ex rel. John WALLACE, Respondent, v. The STATE of New York and William Lombard, Monroe County Sheriff, Appellants.

Supreme Court, Appellate Division, Fourth Department.

Feb. 28, 1979.

Robert Abrams, Atty. Gen., Albany by Vincent Barone, Asst. Atty. Gen., Rochester, for appellants.

David A. Murante, Rochester, for respondent.

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

MEMORANDUM:

Petitioner was conditionally released from prison in June, 1978 after serving a sentence for unlawful possession of a weapon. On the evening of August 17, 1978 he was engaged in an altercation with a man named Dees in which at least two shotgun blasts were fired while the two men fought for possession of the weapon. Petitioner received a wound near his nose, the pellets exiting the left side of his head, and Dees received a knife or razor wound to his shoulder requiring twenty-three sutures. Dees ran from the scene. Petitioner left in a car and was later apprehended parked in a shopping center about five miles from the scene of the fight. The police found a sawed-off shotgun under the car, beneath the seat in which petitioner was sitting, and one or two live shells in the front seat. They found a purse with six shotgun shells and a shoulder holster in the trunk of the car.

Petitioner was taken into custody and held on a detainer warrant. A preliminary revocation hearing was held on August 29, 1978. The notice of preliminary hearing charged him with three violations of his parole on the night in question, possession of a weapon (the shotgun), possession of a weapon (a razor), and menacing the safety of another individual, i. e., Joseph Dees. After taking the testimony of five witnesses, the hearing officer found "probable cause" to believe that petitioner had violated the terms and condition of his release by possessing a sawed-off shotgun and by menacing Dees. Although the testimony as to whether petitioner or Dees had the gun originally and who initiated the altercation was in substantial conflict, the hearing officer obviously credited Dees' testimony that petitioner approached him with the shotgun in a shoulder holster, removed it and attempted to shoot him and that the wounds were inflicted while the two men fought for control of the gun.

Petitioner then instituted this habeas corpus proceeding, urging that the evidence of violation was insufficient because he had...